Wills, Trusts and Probate Disputes Solicitors

Under the Inheritance (Provision for Family & Dependants) Act 1975, where a person falls within a certain specified category and the Will does not make ‘reasonable financial provision’ for that person, they may have a claim for a share (or greater share) of the deceased’s estate, regardless of what the Will says. These specified categories include

• The deceased person’s current or former spouse (or civil partner)
• The deceased person’s child (whether an adult or under 18 years of age)
• Someone who was treated as the deceased’s child
• The deceased’s co-habitant.
• Someone who was in some way financially maintained by the deceased.

What ‘reasonable financial provision’ is, depends upon the category of claimant, and factors which are specified in the Act, such as the claimant’s financial needs and resources, or the length of the marriage in the case of a spouse or civil partner.

For example, Mr and Mrs A have a daughter, Miss B. Mr A dies in the early 1990’s leaving his estate to his wife, Mrs A after which Mrs A and Miss B have a serious falling out and become estranged. Mrs A makes a Will leaving her entire estate to various charities, but nothing to Miss B. When Mrs A dies, Miss B’s financial circumstances are not good; she is living in Housing Association accommodation and reliant on benefits. She is eligible to bring a claim for reasonable financial provision from Mrs A’s estate.

 Another example – Mr A makes a Will leaving his main asset, his house, to his 2 sons, and a cash legacy of £1000 to Ms B, who Mr A has been co-habiting with as if she were his wife (even though they were not married)  for a number of years, and she has been reliant on Mr A for a roof over her head. Ms B is eligible to bring a claim on the basis that £1000 is not reasonable financial provision.

A Will can be invalid or challenged for one or more of the following reasons.

Correct legal formalities were not complied with when the Will was made

The Wills Act 1837 sets out strict requirements for making a valid Will. Broadly, it must be in writing and signed, and the signature must be made or acknowledged in the presence of two witnesses at the same time who each attest and also sign, or acknowledge the signature in the presence of the Will maker.

There is a presumption that a Will is properly executed, but it can be rebutted.

For example, in the case of Murrin v Matthews [2006]  although the Will was signed by two witnesses, there was no address given for them, nor could they be found. In the circumstances of the case, the court decided that the (only) beneficiary of the Will was ‘overwhelmingly likely’ to have been involved in the preparation of the Will, and as he produced no evidence from the attesting witnesses, the presumption of due execution was rebutted and the Will was declared invalid.

The person making the Will did not have the necessary mental capacity

Known as ‘testamentary capacity’, this is a common ground for challenging a Will, especially with an ever aging population where cases of dementia are more prevalent. However, it does not necessarily follow that a person with dementia does not have testamentary capacity. The assessment of capacity from the solicitor who drafted the Will can be just as important as a medical experts evidence.

Testamentary Capacity can be affected by all sorts of things other than medical conditions like dementia, such as grief (in the case of Key v Key [2010]),  or drunkenness (Chana v Chana [2001]) or the impact of medication on a testator’s mental capacity.

The person making the Will did not ‘know and approve’ the Will

This is applicable if the person making the Will didn’t understand what he or she was doing, or the Will did not truly represent their true testamentary intentions. The more suspicious the circumstances under which the Will was made (e.g the main beneficiary being heavily involved in the making of it) the more evidence is required to show that the Will was read over before it was signed, and the testator truly ‘knew and approved’ it.

There is an overlap here with lack of testamentary capacity but whilst it would be impossible for someone to lack testamentary capacity, but know and approve a Will, it is possible for them to have testamentary capacity, but not know and approve one.

In the case of Gill v Woodall [2010], the court decided that Mrs G did not know and approve her Will. In the Will, her estate was left to a charity with which she had no connection, and about which she made derogatory comments. Mrs G’s domineering husband (who had made the arrangements for her Will to be made) combined with her ‘shy and timid’ nature and her agoraphobia were relevant in the court concluding that the Will did not truly represent Mrs G’s intentions and that she could not therefore have known and approved it.

The person making the Will was unduly influenced

In order to invalidate a Will, the influence must be exercised by coercion in the sense that the will of the testator is overborne. Pressure which causes a testator to succumb for the sake of a quiet life, if to the extent that it overbears free judgment, can be enough to amount to coercion, and a ‘drip drip’ approach can affect free will. The physical and mental strength of a testator is important because the will of a weak and ill person can be affected more easily than a ‘hale and hearty’ one.

For example, in the case of Schrader v Schrader [2013] Mrs S had two sons, Nick and Bill, but she made a Will leaving her house to only Nick. Mrs S was frail, vulnerable and heavily dependent on Nick, which was relevant, as was the court’s finding that Nick was a ‘forceful man with a forceful presence’. The court decided Nick had unduly influenced his mother, and the Will was thus invalid. It decided ‘Nick was instrumental in sowing in his mother’s mind the desirability of his having the house, and in so doing took advantage of her vulnerability’.

The Will was the product of fraud or forgery

Copying a testator’s signature is an obvious example of forgery, but dishonestly suppressing or destroying a Will, or proffering a Will knowing that it is false or invalid are also examples.

Dishonestly ‘poisoning the mind’ of a Will-maker against a person who would otherwise benefit from their estate, by making untrue statements to them is also a form of fraud (known as ‘Fraudulent Calumny’).

For example, in the case of Edwards v Edwards [2007] the court decided that Mrs E’s mind had been poisoned by one of her sons – Terry, against her other son – John, leading her to make a Will leaving her entire estate to Terry. The untrue allegations included Terry’s claim that John and his wife had stolen things from Mrs E. Her Will was declared invalid.

Mutual Wills are where two people agree to make their Wills in a particular, often similar way but also on the basis that neither of them will change their Will after the first of them dies. Mutual Wills are often used where testators want to leave their estate to their spouse or partner, but want to also make sure that whatever is left of their estate after the spouse/partner dies goes to the beneficiaries of their choice such as their children, a sibling, or a particular charity.

Changes in our society, in particular the increase in second plus marriages where each partner has children from a previous relationship, has given rise to an increase in the number of situations where, despite having made a Mutual Will, the surviving spouse or partner makes a new Will anyway, most commonly to benefit their children instead of the children of the spouse or partner who died first. In these circumstances, those who would have benefited from the Mutual Will can bring a claim, and if an executor has distributed the estate to the wrong beneficiaries because the terms of the Mutual Will were not adhered to, they can end up with a personal liability to repay to the estate whatever they have incorrectly distributed. It is therefore important to seek advice early on if there are questions over whether the testator was bound by a Mutual Will.

A Proprietary Estoppel claim is where a promise or assurance has been made to a person that they would inherit an asset , and the person has reasonably relied on that promise, and suffered some detriment because of it – but the promise is broken.

For example, Mrs A promises Mrs B that she will make a Will leaving her house to Mrs B, if Mrs B gives up her promising career to come and care for Mrs A full time until her death. Mrs B duly does this but Mrs A’s Will leaves her house to Mrs C. In this case, Mrs B has a claim to Mrs A’s house, the monetary equivalent of it or a portion of the monetary equivalent.

Another example; Mr A is a dairy farmer. He has 3 children – Mr B, Mr C and Miss D.  Mr B has worked his entire life on the farm for little or no wage in reliance of Mr A promising him, or leading him to believe that he would inherit the whole farm on Mr A’s death. Mr C and Miss D have both had careers separate from the farm. Mr A however makes a Will leaving the farm to Mr B, Mr C and Miss D in equal shares meaning that Mr B will not in fact inherit the whole farm. Mr B may have a Proprietary Estoppel claim.

Under section 20 of the Administration of Justice Act 1982, mistakes in a Will can be rectified if the Wills fails to carry out the testator’s intentions due to a ‘clerical error’ or a failure to understand instructions.

For example, in the case of Marley v Rawlings [2014] , Mr and Mrs R had both made Wills at the same time leaving their respective estates to each other and on the death of the survivor of them to Mr Marley, who was not related to Mr and Mrs R but they, but treated  him as if he were their  son. However, Mr and Mrs R had mistakenly signed each other’s Wills. Mrs R died first and when Mr R died the question arose whether his Will was valid, and whether the error made by the solicitor in handing the wrong client the wrong Will to sign, could be rectified by the court or not. If not, Mr R’s estate would have passed by the rules of intestacy to his sons instead of to Mr Marley. The court decided it could rectify Mr R’se Will under section 20 and that ‘clerical error’ has a wide meaning to include mistakes preparing, filing, sending and organising the execution of documents, except where it involves some special expertise (which handing a client a document to sign does not).

Where an error is made in a Will which cannot be rectified by the court as it was in the example above, or is the result of a solicitor getting the law wrong, or failing in their duties, the dispute will be between the solicitors firm (or their insurers) and either the person who loses out as a result or the person representing the deceased persons estate – most commonly by way of a claim in negligence against the solicitor.

For example, in the case of White v Jones [1995]  Mr Jones (a solicitor) was instructed by Mr Barratt in July to make a new Will for him which benefited his two daughters, one of whom was Mrs White. However, the Will was not prepared before Mr Barratt died on 14 September. The court decided that Mr Jones had been negligent in failing to draft the Will in a timely manner and that he was liable to Mr Barrett’s daughters for their foreseeable loss – ie what they would have inherited had the Will Mr Jones had been instructed to draft in July had been made before Mr Barratt died.

Disputes which arise about the meaning of a Will or a particular clause in it

Disputes about the meaning of a Will or a particular clause in it can arise for a number of reasons. The Will may be unclearly drafted, or the testator may have used language that is open to interpretation. In some cases, the dispute may be due to a genuine difference of opinion about what the testator intended. In these cases, the court can be asked to make a decision about meaning.

A claim can be brought against an executor if the executor is not following the terms of the Will, is not properly administering the estate, or is mismanaging the estate’s assets. In some cases, an executor may also be removed from their position if they are not acting in the best interests of the beneficiaries.

To forcibly remove an executor, a beneficiary must file a claim  with the court stating  the grounds for removal, such as the executor’s failure to follow the terms of the Will or their mismanagement of the estate’s assets.

An Executor could be failing in their duties by any of the following;

• Selling estate property at an under-value
• Failing to dispose of a wasting asset before they lose value
• Taking estate assets and using them for their own purposes
• Failing to pay estate debts
• Paying a debt which is statute barred
• Paying the wrong beneficiaries
• Discharging estate debts in the wrong order.

When a person dies, their wishes as drafted in their Will can sometimes be surprising to family and close friends who are left behind. The often high value of the assets and money involved can cause upset if it is felt that the Will is somehow unfair and there are certain circumstances that can cause the contents of the Will to be disputed by solicitors, such as:

• The Will does not make sufficient financial provision, or any financial provision at all, for a spouse, civil partner, child (either adult or under 18), someone treated as a child, cohabitant, or someone maintained financially by the testator.
• The beneficiaries of the Will are a surprise to family members or those close to the testator.
• There are concerns the Will is invalid because the testator did not have mental capacity to make a Will, or the Will was not understood by them and does not reflect their true intentions.
• There are concerns the testator was unduly influenced to make the Will.
• There are concerns the Will was forged or the result of fraud.
• A promise was made to leave someone property in a Will, but the promise was broken.
• The Will contains a clerical mistake or fails to implement the testator’s intentions.
• The Will was not executed properly, so is not valid.
• There are differing opinions about what the Will or a particular clause in it means.
• The beneficiaries of the Will want to remove the executors from office.

Correct legal formalities were not complied with when the Will was made

The Wills Act 1837 sets out strict requirements for making a valid Will. Broadly, it must be in writing and signed, and the signature must be made or acknowledged in the presence of two witnesses at the same time who each attest and also sign, or acknowledge the signature in the presence of the Will maker.

There is a presumption that a Will is properly executed, but it can be rebutted.

The person making the Will did not have the necessary mental capacity

Known as ‘testamentary capacity’, this is a common ground for challenging a Will, especially with an ever aging population where cases of dementia are more prevalent. However, it does not necessarily follow that a person with dementia does not have testamentary capacity. The assessment of capacity from the solicitor who drafted the Will can be just as important as a medical experts evidence.

The person making the Will did not ‘know and approve’ the Will

This is applicable if the person making the Will didn’t understand what he or she was doing, or the Will did not truly represent their true testamentary intentions. The more suspicious the circumstances under which the Will was made (e.g the main beneficiary being heavily involved in the making of it) the more evidence is required to show that the Will was read over before it was signed, and the testator truly ‘knew and approved’ it.

There is an overlap here with lack of testamentary capacity but whilst it would be impossible for someone to lack testamentary capacity, but know and approve a Will, it is possible for them to have testamentary capacity, but not know and approve one.

The person making the Will was unduly influenced

In order to invalidate a Will, the influence must be exercised by coercion in the sense that the will of the testator is overborne. Pressure which causes a testator to succumb for the sake of a quiet life, if to the extent that it overbears free judgment, can be enough to amount to coercion, and a ‘drip drip’ approach can affect free will. The physical and mental strength of a testator is important because the will of a weak and ill person can be affected more easily than a ‘hale and hearty’ one.

The Will was the product of fraud or forgery

Copying a testator’s signature is an obvious example of forgery, but dishonestly suppressing or destroying a Will, or proffering a Will knowing that it is false or invalid are also examples.

Dishonestly ‘poisoning the mind’ of a Will-maker against a person who would otherwise benefit from their estate, by making untrue statements to them is also a form of fraud (known as ‘Fraudulent Calumny’).

In order to resolve a Will dispute, the person bringing the claim will first have to articulate the legal and factual basis of their claim, otherwise there is nothing to resolve. For those alleging a Will is invalid, this most often involves gathering key evidence such as the Will file of the solicitors who drafted the Will and the deceased persons medical records (if it is alleged they lacked testamentary capacity).

Next, they need to formulate their case in a concise but detailed ‘Letter of Claim’. Those affected by the claim (usually the main beneficiaries of the estate by the Will) will then have an opportunity to reply. Ultimately, the court’s function is to resolve Will disputes, but those who are affected often choose to try and reach an agreement between themselves before things get to trial by engaging in a form of Alternative Dispute Resolution (‘ADR’) which, if successful, is considerably less expensive than a trial. Mediation is a popular form of ADR which involves the parties agreeing the appointment of a mediator to help them move towards a settlement everyone can live with. Another form of ADR is ‘Early Neutral Evaluation’ where, unlike a mediator, and independent person (usually a solicitor or barrister) is appointed by the parties to make a decision based on written submissions and brief legal argument which it is agreed everyone will abide by.

It is possible to enter a caveat which stops probate going ahead. This may be done where, for example, there is uncertainty over which of more than one Will is the last valid Will or whether, for example, the deceased really died intestate. You must be 18 or over to submit a caveat and it will last for six months.

A Will can be varied if everyone who benefits directly from the Will agrees to the change. In order for this agreement to be legally enforceable, a deed of variation should be drawn up. A Will may be varied for a number of reasons e.g. to reassign the way the estate is divided up and/or to make the division more tax efficient. A Will may also be varied if a claim is made under the Inheritance (Provision for Family and Dependants) Act 1975. Note that if the variation of the Will or intestacy is to have a tax saving benefit, the variation must usually take place within two years of the date of death.

The first thing to do is seek specialist legal advice, and do so quickly so that the type of claim you have is identified at the outset, appropriate steps are taken to protect your position and nothing is done to prejudice your position.

For example, it is possible to block the issue of a grant of probate, but that is not the proper step to take if your claim is a claim under the Inheritance (Provision for Family & Dependants) Act 1975 for reasonable financial provision. There are also time limits to keep in mind. For example, you will usually only have six months from the date on which a grant of probate is issued to bring a claim under the 1975 Act, or to bring a claim asking the court to rectify a Will where there has been a clerical error. It is also important to correctly identify who are going to be the defendants to your claim, and make sure time is not wasted by incorrectly identifying them.

We will firstly aim to resolve matters through negotiation or alternative methods of dispute resolution such as mediation. In the situation where this is not possible and the matter proceeds to trial, you will then have to attend court and give evidence. However, most cases are settled without the need to go to court.

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to bring a claim for financial provision where they do not believe their current financial provision, if any, is adequate.

The following people can apply under the act:

• The spouse or civil partner of the deceased
• A former spouse of civil partner of the deceased who has not formed a subsequent marriage or civil partnership
• Any person who, during the whole of the period of two years ending immediately before the date when the deceased died, was living in the same household as the deceased and as the husband or wife of the deceased or civil partner
• A child of the deceased
• Any person, not being a child of the deceased, who, in the case of any marriage or civil partnership to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage or civil partnership
• Any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased

No.

If those affected cannot agree, the court can be asked to make a determination. The court can look at whether the Will gives effect to the deceased’s intentions and may also rectify any clerical errors made in the Will.

In this case, you should get in touch with your local Probate Registry and see if they can tell you if there is a Will made by the deceased. If you believe that there is a Will and someone is withholding it, an application can be made to the court to make that person produce the Will or attend court and provide further information.

It is possible to apply for an executor to be removed and a new executor appointed. This will be done by court order. The court will only remove an executor where the removal is in the interest of the proper administration of the estate and will promote the welfare of the beneficiaries. Alternatively, a citation, which is a direction issued by the court, can require an executor to either accept or refuse a grant of probate.