Will disputes can take on a variety of forms, including disputes as to the terms of the Will, whether the Will was validly made or “executed”, how a person has chosen to leave their estate, and how the Will has been given effect to and the deceased’s estate distributed. Does this sound like your problem? If so, read on.
Will disputes tend to fall into 5 main categories, though sometimes into more than 1 of these categories:
(a) Defects in execution of the Will
In order to be valid a Will must comply with the rules that are set out in the Wills Act 1837. This Act covers matters such as who can make a Will, signature by the person making it (the Testator) and how their signature is required to be witnessed. A failure to comply with the formal requirements of the Wills Act can be fatal to a party wishing to have a Will admitted to probate.
“Probate” is the formal process whereby the Will is recognised by the Probate Department of the Civil Courts as being valid and which enables the persons appointed by the Will to deal with the deceased’s estate to carry out their duties.
Not all errors in execution of the Will are fatal; some can, in certain circumstances be overcome, usually by applying to the Probate Court with suitable additional evidence.
Other Will disputes in this category can involve claims to rectify (in effect rewrite) the Will because, for example, the Will as drawn fails to carry out the Testator’s intentions and there are disputes concerning the meaning and interpretation of the Will.
(b) Disputes as to capacity
Will disputes concerning capacity can involve allegations as to whether the person making the Will had the appropriate mental capacity at the relevant time; whether they had appropriate knowledge of and approved of the contents of their Will and whether the person who made the Will was coerced into doing so, rather than acting of their own free will.
The standard test applied by the Courts to decide whether the Testator had capacity to make a Will is whether:
they understand the nature and effect of what they are doing;
they understand the extent of the property which they are disposing of by Will;
they are able to comprehend and appreciate the claims to which they might give effect; and
they are subject to any disorder of the mind which poisons their affection, prevents their sense of right, or prevents the exercise of their natural faculties.
In addition there are specific provisions under the Mental Capacity Act 2005 which cover when a person is deemed to lack mental capacity.
The time at which mental capacity is assessed is at the date that the Will is made, except where the Testator has full capacity at the time of giving instructions for a Will and their Will is prepared later in accordance with those instructions.
Usually the burden of proving mental capacity falls on the person seeking to rely on the Will. Medical evidence is often acquired in cases of doubt concerning mental capacity. Usually, to be of evidential value this must be evidence gathered at the time. The Courts are reluctant to accept evidence obtained after the event.
Disputes as to whether the Testator lacked knowledge of or have approved the contents of their Will often turn on the question "can the Court can be satisfied that the contents of the Will do truly represent the Testator’s intentions?" This is either because it can be shown that they were not aware of the actual contents of the Will, or because there are suspicious circumstances surrounding how the Will came into being – often the person preparing or procuring the Will is a substantial beneficiary under it. By and large, the Courts require clear evidence that the contents of the Will were read or explained to the Testator before they signed the Will. Even then, this is not always enough; the Court will want to be satisfied that the Testator understood the effect of what the Will is intended to achieve.
Similar but distinct questions can arise in cases involving undue influence. In Will disputes undue influence means coercion; this can cover verbal bullying, physical violence or threats, as well as harassing often elderly or sick persons, in such a way as to make them do something against their Will for the sake of a quiet life. However, with the elderly, coercion can be very subtle. Cases we have dealt with have involved the deliberate poisoning of a person’s mind against other beneficiaries. What is required is that the conduct overpowers the Testator’s free will. With a weak or ill person the extent of the influence can be less than with a fit and healthy person.
In practice undue influence is difficult to prove; there is a whole range of conduct which, though it may be regarded as morally dubious, falls short of undue influence because it cannot be shown to have prevented the Testator’s free will.
Without clear evidence of coercion a Court will want to be satisfied that there is no other explanation possible for the Will, other than coercion. In situations where a Will has been made in favour of a person who is in the position to influence the Testator, a Court may be more willing to infer that there has been undue influence.
(c) Dishonestly procured Wills
Will disputes where the Will is invalidated by an error in execution, or where the Testator lacks capacity, or has not approved the Will are dealt with above. What we are concerned with here are the cases involving dishonesty, usually in the form of fraud or forgery.
Fraud which invalidates a Will is what the Courts refers to as “fraudulent calumny” – a person, intending to benefit from the Will, or intending that another person should not benefit under the Will poisons the Testator’s mind against a person who would otherwise be a beneficiary, by dishonestly mudslinging against a beneficiary, either knowing that the comments are false, or not caring whether they are true or false.
The second commonly encountered situation where a Will has been procured dishonestly is where the Testator’s signature on the Will has been forged. Cases involving allegations of fraud are treated by the Courts as serious. The burden of proving fraud lies with the person who brings the claim; the standard or proof required is high. We have successfully taken such a case to trial where a stepfather forged his wife’s will, preventing the stepson from inheriting. The court threw out the will, which allowed the stepson, our client, to inherit from a high value estate.
(d) Problems with administration of the estate
Will disputes in this area include claims for damages for wrongly administering the estate; claims to remove or replace the Personal Representatives of the estate who are appointed under the Will; claims for an account of how monies in the estate have been distributed or spent and other claims against the Personal Representatives. What all of these claims have in common is that they involve claims on behalf of or against the estate of the deceased. The Personal Representatives are those persons who are appointed under the Will as Executors to carry out the deceased’s wishes and to collect in and administer the deceased’s estate. Their power to deal with the deceased’s estate derives from the Will and the Grant of Probate.
We have successfully represented one side of a family who did not receive their share of their grandfather’s estate after it was incorrectly administered by another family member.
The Personal Representatives are required to deal with the estate in accordance with the Will, the Administration of Estates Act and associated legislation. Their responsibility is owed primarily to the estate. Will disputes frequently concern whether the Personal Representatives have complied with their duties and acted in accordance with their legal obligations.
As well as taking action where required to recover and preserve assets of the estate, the estate and the Personal Representatives may face claims from disappointed beneficiaries and others; for example that property comprised in the estate, or the entire estate, is in fact held on trust for them outside of the terms of the Will, or estate property is owned or held by them outside of the terms of the Will under what is described as a proprietary estoppel – in essence a promise made to a person, who has acted in reliance upon the promise to their detriment. These claims frequently involve claims to properties said to have passed to parties outside of the Will and/or before the Will was made.
Claims of the sort mentioned above require the Personal Representatives to be actively involved in defending or opposing them, others require the Personal Representatives to obtain an indemnity for costs that they incur from the estate.
We bring claims against Personal Representatives, for failing to provide accounts for estate property; claims of overcharging by professional Personal Representatives and claims made by beneficiaries which have come to light some years after the estate has been distributed, alleging that their claim has been overlooked.
The firm regularly advises on claims against Personal Representatives seeking their removal, substitution of an alternative and their replacement through death, illness, incapacity or where the Personal Representative has committed a serious breach of office. Frequently applications are necessary to compel often obstructive Personal Representatives to take action before a Grant of Probate is issued, as well as applications to remove and replace Personal Representatives who have behaved incorrectly and are in breach following a Grant of Probate having issued.
(e) Dispute concerning how a person has chosen to leave their estate
Mention has already been made of claims in Will disputes arising from proprietary estoppel and property said to pass on implied trusts outside of the Will. What we are mainly concerned with in this section are claims to alter the distribution of the estate made under Section 1 Inheritance (Provision for Family and Dependants) Act 1975.
While it is a basic rule of English law that a person, with limited exceptions, is free to leave their property as they see fit in their Will, this is subject to a right of certain groups, essentially, relatives of the deceased, to bring a claim challenging the distribution of the estate on the basis that the terms of the Will fail to make adequate provision for them. We have recovered millions of pounds for clients bringing claims of this type.
WARNING! There is a strict time limit in which to bring a claim of 6 months from the date that a Grant of Probate is issued. Outside of this period there is no right to bring a claim except with the Court’s permission, which is very difficult to get. There should therefore be no distributions made by the Personal Representatives of the estate within 6 months of a Grant of Probate being made, except with the Court’s or the beneficiaries’ prior approval.
Strictly speaking claims under the 1975 Act are not claims against the estate but are a claim between the Applicant and the beneficiaries in which the Personal Representatives are expected to maintain a neutral stance.
The classes of person who may apply for financial provision from the estate under the 1975 Act include the current or former husband or wife of the deceased, or a person who lived with the deceased as their partner; any child of the deceased and any person who immediately before the deceased’s death was being wholly or partly maintained by the deceased.
Different criteria apply to those applying in the capacity of husband and wife or partner of the deceased and those applying in other capacities. In the case of the former, they may apply for such financial provision as it would be reasonable in the circumstances of the case for that person to receive. The Court’s discretion as to what it may award is wide and extends beyond merely providing maintenance. In all other cases the Court must consider what would be reasonable maintenance which the Applicant should receive in the particular circumstances of the case.
Cases where the Applicant is of limited financial means or is suffering from a serious disability have attracted awards where the Court has looked objectively when assessing the reasonableness of the provision made by the Testator for the Applicant. The matters to which the Court must have regard when exercising its discretion are set out in some detail in the 1975 Act.
With claims involving large estates there will often be complex tax and estate planning considerations to be taken into account when considering and dealing with these claims.
The above comments on the law, are not intended as advice and you should not rely upon them as such. Contact us for specific advice on the situation you face.
For further information on how we can help you call our Managing Partner, Hugh Davey or Consultant Solicitor Tracey Ashford on 0333 344 5012 or out of office hours on 07914 897137. Or view our enquiries page