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  • Overview

    It's impossible to prepare for every eventuality and prevent a probate dispute, but there are various ways to reduce their likelihood, says Jessica Bermingham.

    It has been reported that the daughter of the recently deceased trade union leader, Bob Crow, has commenced court proceedings to challenge his testamentary arrangements. The details are not yet clear, but it is reported that Mr Crow failed to make any provision in his will for his daughter, Kerrie Atlee. Mrs Atlee has stated that the will is riddled with errors and is "very different to what… [she was] told."

    This article provides an overview of the potential remedies that a disappointed beneficiary (such as Mrs Atlee) may wish to consider when faced with a will from a family member that is disappointing, surprising, or even suspicious.

    Often these disputes arise from underlying tension and hostility, which comes to a head with the death of a family member. Even in these instances, there are steps that will draftsmen can take to reduce the risk of future disputes arising, thus minimising their risk of incurring liability for the costs of a subsequent probate dispute.

    Challenges to the validity of the will

    A dissatisfied beneficiary who was set to benefit more under a previous will, or by the intestacy provisions, may seek to allege that the latest will is invalid on the following grounds:

    • the will does not comply with the execution formalities;
    • the deceased lacked capacity;
    • the deceased did not know and approve the contents of their will; and
    • the deceased was subject to undue influence or the will is a result of fraud.

    Formalities

    Section 9 of the Wills Act 1837 sets out the formal requirements for a validly executed will. Specifically:

    “No will shall be valid unless –

    • it is in writing and signed by the testator, or by some other person in his presence and by his direction; and
    • it appears that the testator intended by his signature to give effect to the will; and
    • the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
    • each witness either –
      • attests and signs the will; or
      • acknowledge his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”

    Problems commonly arise in the case of 'home made' wills where handwritten amendments have been made, or where a will is undated. An undated will is still valid, but it can lead to a lack of clarity as to whether the document in question truly represents the deceased's last wishes. Supporting evidence may need to be considered, for example if there were a number of wills executed in close succession.

    The witnesses and their spouses must not receive anything under the will or they will forego their legacies. The testator must also understand the contents of their will at the time of execution (or instruction in certain circumstances) and this is usually presumed where there is due execution. Where a beneficiary is involved in the preparation or execution of the will, that presumption is rebutted and the court will require proof of knowledge and approval.

    To ensure that the formalities have been complied with and that there is due knowledge and approval, practitioners should try to arrange for the will to be executed on their premises. If this is not possible, the client should be given clear written instructions on the procedure and the will closely inspected afterwards.

    Lack of capacity

    The deceased must have had testamentary capacity in order to make a valid will. It was recently confirmed in Walker v Badmin [2014] All ER (D) 258 that the long standing test in Banks v Goodfellow (1869-70) LR 5 QB 549, has not been replaced by the slightly more onerous test set out in the Mental Capacity Act 2005.

    The Banks test states that the testator should have understood the nature, meaning and effect of making a will, the extent of the property they were disposing of, and be aware of those to whom he would normally be expected to provide.

    Where appropriate, will draftsmen may wish to arrange for a medical practitioner to assess the testator's capacity at the time of instruction, and execution of the will. The medical practitioner should be properly briefed as to the nature of the assessment that they will need to make.

    Alternatively will draftsmen should ensure that they read the will out to the deceased and ask them open questions, recording their assessment as to their capacity in an attendance note. Practitioners should also look out for warning signs that may cast doubt on a testator's capacity.

    This could be a departure from earlier wills, the unexplained omission of certain property or people, or possible mistakes and inconsistencies in the testator's instructions.

    Undue influence and fraud

    A successful claim of undue influence requires proof that the testator was forced into making a will that went against their wishes; the threshold is higher than that of mere persuasion. If the testator's mind was poisoned against certain individuals, such that they became disinherited, the will can also be declared invalid.

    It may even be claimed that the will could have been forged. This is a very serious allegation and the court will require a high level of evidential proof.

    Practitioners should ensure that, if possible, arrangements are made for instructions to be given in the absence of potential beneficiaries or others who may exert influence.

    If the testator wishes to be accompanied when giving instructions, the draftsman should carefully document the reasons for this request. Similarly to capacity, warning signs should be followed up with the client.

    Claims under the Inheritance Act

    A claim under the Inheritance (Provision for Family and Dependants ) Act 1975 (an IA claim) does not challenge the validity of the will itself. It is an application for an award out of the deceased's estate on the basis that the will (or lack thereof) failed to adequately provide for the applicant, who must fall within one of the designated categories as set out in section 1(1) of the Act.

    For spousal claims, the relevant assessment is whether reasonable provision has been made for the applicant in the deceased's testamentary arrangements. However in non-spousal claims, this assessment is referable to what is required for the applicant's maintenance.

    In order to minimise risks of future claims, will draftsmen should ensure that outline advice is provided to testators as to the effect of the Inheritance Act, the categories of potential applicants, and whether a client's instructions could give rise to a future claim. The client may then wish to receive more specific advice on this point and tailor their testamentary arrangements accordingly.

    Proprietary estoppel

    This arises where the deceased had made an assurance to someone in relation to a specified property, and that person has reasonably relied on this to their detriment. If the assurance is not then given effect by the deceased in their testamentary arrangements, provided the court considers it would be unconscionable for them to renege on the assurance, an applicant may be entitled to an award from the estate.

    This is a difficult issue for will draftsmen to address, as third party rights are often not flagged up by the testator. However, this highlights the importance of asking detailed questions and fully considering any potential future claims against their estate. If it becomes apparent that third party rights exist, that may result in a future challenge against the deceased's estate, practitioners may wish to think about changing testamentary arrangements.

    Summary

    A probate dispute cannot always be anticipated or avoided and these types of challenges often arise at a time when emotions are running high. The process that is followed when preparing a will (and not just the final executed will itself) often proves crucial when issues are raised after the death of the testator.

    Careful steps such as preparing thorough attendance notes, asking the testator detailed questions and advising them of the possibility of future claims, can be critical. This will not only help to reduce the risk of future probate disputes and claims against the practitioner, but also by constituting the often vital evidence needed to provide clarity to all parties in a dispute, and hopefully assisting in its swift resolution.

    Article first published in Private Client Advisor (online) on 19th March 2015.

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