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Lack of testamentary capacity is one of the grounds upon which a disappointed beneficiary may seek to challenge a deceased’s Will. The recent case of Hughes v Pritchard 2022 EWCA Civ 386 highlighted a number of important issues concerning the level of recall required by a testator in respect of their movement away from the terms of an earlier Will, together with the weight attributed to the evidence of an experienced practitioner and medical expert, when it came to assessing the testator’ testamentary capacity to amend his Will.

The case surrounded the estate of Mr. Evan Hughes (“the Deceased”) who died in March 2017. He had three children, namely Gareth, Carys and Elfred. At the time of his death, Mr. Hughes owned a farming business, together with a substantial amount of land. Mr. Hughes’ last Will was made in July 2016 (“the 2016 Will”). At the time of making this Will, Mr. Hughes had dementia and was also grieving for his son Elfred, who had taken his own life a few months earlier.

Under the 2016 Will, Mr. Hughes’ farmland was divided equally between Gareth and the beneficiaries of Elfred’s estate. Under an earlier Will made by Mr. Hughes in 2005 (“the 2005 Will”), he left all of his farmland to Elfred.

Elfred’s widow and sons brought a claim that the 2016 Will was invalid for lack of testamentary capacity, relying upon the earlier 2005 Will.

At first instance, the trial judge found that the Deceased did not have testamentary capacity to execute a valid Will in 2016. This was despite a positive capacity assessment being undertaken by the Deceased’s GP at the time of the Will instructions, together with detailed attendance note records kept by the instructing solicitor. The trial judge at first instance, instead preferred evidence that the Deceased’s’ memory had been deteriorating over time and that he believed he was only making simple changes to his 2016 Will.

The Court of Appeal overturned the first instance decision, finding that ‘testamentary capacity does not require a testator to recall the terms of a past will they have made, or the reasons why it provided as it did, as long as they are capable of accessing the information if needed, and of understanding it once reminded of it’. The court confirmed that testamentary capacity has to be considered in relation to the complexity of the dispositions proposed and the potential to understand. The terms of the 2016 Will were discussed between the Deceased and his solicitor. The Deceased was able to recite those terms to the GP assessing capacity and the Deceased approved the terms. The 2016 Will, therefore, appeared rational on its face and there was no evidence to suggest that the Deceased had forgotten about the more favourable terms to Elfred under the 2005 Will, therefore the 2016 Will was held valid.

This case highlights the importance of practitioners following ‘The Golden Rule’ in respect of the elderly and infirm, where testamentary capacity may be called into question. The solicitor who took Mr. Hughes’ 2016 Will instructions, had completed detailed attendance note records, confirming Mr. Hughes’ instructions and acknowledging that he wanted to change his 2005 Will. In view of the concerns over Mr. Hughes’ capacity, she sensibly sought a testamentary capacity assessment from Mr. Hughes’ GP, before the Deceased executed the same.

Whilst the court confirmed that positive evidence of a contemporaneous testamentary capacity assessment is not definitive evidence of a finding that the testator’s Will is valid, such evidence should be given considerable weight when assessing whether the testator had testamentary capacity to execute a valid Will.

If you believe that there may be a valid reason to contest a Will…Talk to Tollers on 01604 258558. Our experienced contentious probate solicitors will be happy to discuss things further.

We are regularly asked if it is possible to contest a will after probate has been granted.  The short answer is yes you can. However, it really is preferable to seek legal advice and bring any claim at the earliest opportunity, since the recoverability of estate assets (in a successful claim) after an estate has already been distributed, can be problematic and lead to increased costs.

A Grant of Probate is the legal document issued to Executors where there is a will. A Grant of Letters of Administration is the legal document issued to Administrators where there is no will (an intestacy).  This document gives the personal representative appointed, the legal right to deal with the deceased person’s property, money and possessions and to distribute their net estate, in accordance with their will or under the intestacy rules (where there is no will).

When a disappointed or disinherited beneficiary state that they wish to ‘contest a will’, they may have any of a number of different claims against an estate. The two most common claims are: –

  1. A challenge to the validity of the will;
  2. A claim for reasonable financial provision under the Inheritance (Provision for Family & Dependants) Act 1975 (“1975 Act claim”)

A 1975 Act claim must be issued at court within 6 months of the date of the Grant of Probate (or Letters of Administration, in an intestate estate).  Only in exceptional circumstances, can a 1975 Act claim be made outside of this time limit with the permission of the court. A 1975 Act claim is a claim by a disappointed beneficiary (falling with a specific class of potential claimants under the 1975 Act) for reasonable financial provision from the estate. Quite often such claims are brought only after a disappointed beneficiary learns that probate has been granted in an estate.

A challenge to the validity of the will, seeks to set aside the last will through some fault in the circumstances surrounding the preparation and/or execution of the will, in order to resurrect the previous will (if there is one), or for the estate to be distributed in accordance with the intestacy rules (where there is no earlier valid will). There is no time limit within which to issue such claims at court. However, the longer a person waits to bring a claim after probate has been granted, the greater the chance that the estate will have been distributed by the executor to the named beneficiaries under the disputed will. Tracing and recovering the estate assets into the beneficiaries’ hands on a successful claim can be problematic (where the assets have been spent or sold), costly and time consuming. Further, with the passage of time, so increases the likelihood of evidence diminishing; will files and records get destroyed and key witnesses’ memories fade.

Contesting a will after probate has been granted can be extremely complex and therefore it is highly recommended that you seek legal advice.

If you believe that there is reason to contest a will… Talk to Tollers on 01604 258558, our experienced contentious probate solicitors will be happy to discuss things further.

Contesting a Will FAQs.

Financial abuse is increasing at an alarming rate.

It is a crime that is not always prosecuted, either out of fear, or because family members do not realise it is taking place until the Deceased has passed away. It is perpetrated against the vulnerable who are unlikely to report it themselves. Financial abuse is the illegal or improper use of an elderly person’s funds, property or assets. It is also where individuals take control of the financial affairs of another (whether by way of a Lasting Power of Attorney or simply on the authority of the individual) and uses that control or access to benefit themselves or others.

Signs of financial abuse:-

Who are the perpetrators?

Who is at risk?

The following conditions or factors increase an older person’s risk of being victimised:-

Things to think about

What to do and who to contact

If you have concerns that a loved one may be being financially abused, then Talk to Tollers, our Contentious Probate Team, who will be able to offer you quick and comprehensive advice.

Last month the You magazine posted an article entitled ‘when the Will won’t go your way’The article picks up on a number of issues created by the more modern and complex family structures that we see in the 21st century. Due to the changing morals of the time and the fact that it is now socially more acceptable in today’s society for people to have not only one, but two, or even more families from respective marriages there has been a rise in inheritance disputes. You magazine quotes a London lawyer who has seen such disputes have risen from about 1 in 100 Wills to about 10 in 100 Wills. More parents favouring one child over another; multiple marriages and the rise in property prices has all contributed to this huge increase in inheritance disputes.

The starting point, however, is that if a Will is valid the provision of the Will stands regardless of how unfair its’ clauses may seem to the respective beneficiaries or those that have been disinherited. A person may distribute their estate to whomever they wish. Which is, arguably, rightly so. If the law were to limit how one distributed their own assets on death the restriction on choice would not sit easily with the concept of autonomy. There is no obligation on an individual to provide an inheritance to anybody, although when an individual comes to write their Will they must have an awareness as to the potential individuals who could come to benefit under their Will. This was laid down in Banks v Goodfellow and forms one of the limbs of the test for mental capacity for making a valid Will. It is merely an obligation to consider and is therefore a low threshold.

If those wishes are to disinherit a family member or, for example, leave all of their money to the cat’s home, as long as the individual had the requisite capacity, such a wish should be valid.  It is useful to record in the Will or (more discretely bearing in mind the Will becomes a matter of public record when a grant of probate is issued) a signed and dated record stating why a particular individual or individuals have been omitted.

However, for those that feel they have been unjustly over looked then there are two possible options available.  Firstly, to challenge the Will.  However, there are only limited grounds for doing so and only worth considering if they are a beneficiary under an earlier Will or in the absence of an earlier Will under the rules of intestacy.  Secondly, to bring an Inheritance (Provision for Family and Dependants) Act Claim against the estate of the deceased.  Again, only certain categories of individuals are entitled to bring a claim.

As the You Magazine suggests this may cause years of turmoil and further disputes and it is important that professional advice is sought.

Tollers’ has a dedicated team to deal with any of your contentious probate issues. If you do require assistance then please Talk to Tollers on 01536 276727.

If there is reason to believe that the contents of a loved ones Will is not valid for any of the following reasons:

Then there maybe a case to contest the Will also known as contesting probate. There are however 3 things you need to know before considering contesting a Will:

1.    How long does someone have to contest a Will?

Where the Deceased left a Will, you have 12 years from date of death to bring a claim against the Estate.

Where the Deceased died intestate (without having made a Will), you have 12 years from the date Letters of Administration are granted, to bring a claim against the Estate.

Completely separate to such claims, are Inheritance Act claims for maintenance from a Deceased’s Estate under the 1975 Act. In such cases you only have 6 months from the date of the Grant of Probate/Letters of Administration are issued, to bring such a claim. Otherwise, you will require the permission of the Court.

2.    Can I get legal aid to contest a Will?

Legal Aid is no longer available in contentious probate matters. Tollers always advise clients as an alternative method of funding, to check to see whether they have any Legal Expenses Insurance on any home buildings/contents insurance, to see whether they might be covered to pursue such claims. Check your terms and conditions policy booklet and if in doubt, contact your insurer directly.

Tollers do offer a range of funding options for contesting a Will. Consideration can be given to funding by way of a ‘No Win No Fee’ agreement, with each matter to be decided on a case by case basis dependent upon the merits of the claim.

3.    Who can contest a Will?

In order to have legal standing to bring such a claim, you must be a beneficiary (of more than that which you currently receive) under the Deceased’s directly previous Will. If the Deceased did not have a previous Will, then you must be a blood relative to inherit under the intestacy rules, for which there is a specific order of hierarchy to entitlement.

The Tollers legal team are members of the Association of Contentious Trust and Probate Specialists (ACTAPS) meaning they are officially recognised as specialists in this niche area of law, a rarity in the region.

We have offices across the Midlands in Northampton, Milton Keynes, Kettering, Corby, Stevenage and Kempston.

Please contact us for completely free initial advice on 0333 414 9191 or email yourdispute@tollers.co.uk.

We have helped many clients through the process of contesting a Will.

How would you feel if you lost half your home of 18 years to your partner’s estranged wife?

This is exactly what Joy Williams faced when her partner Norman Martin suffered a heart attack and passed away. The couple bought the house together in 2009. Joy Williams, 69, lived with Norman Martin, a dentist, for 18 years, but he remained married to his wife. Williams and Martin owned their three-bedroom home in Dorchester, Dorset, as tenants in common, which meant the property – now valued at about £320,000 – did not automatically pass to Williams after her partner’s death in 2012.

Joy Williams brought a claim under the Inheritance (Provision for family and dependants) Act 1975 for reasonable financial provision from the Estate of her late partner. Such a claim is a claim for maintenance from the Deceased’s estate, where it is believed that the provision made for the Claimant by the Deceased from their Estate is not adequate for their reasonable financial needs. 

This case, recently reported upon in the Guardian was heard by Judge Nigel Gerald, in a ruling lasting almost four hours.  A “fair and reasonable result”, the judge concluded, was that Joy Williams should “retain an absolute interest” in the house where she and Mr Martin had lived as husband and wife in a “loving and committed” relationship.

Joy Williams told the Guardian:

“I am relieved and delighted that this case is finally over because it has taken a huge toll on me and my family. I was with Norman for 18 years and those were very happy times. I loved him, he loved me and I still treasure his memory. All I wanted was for the court to recognise that I needed to have his share of the house that was our home to provide me with some security for my future and this judgment has done just that. I believe that that is what Norman would have wanted for me. The judge’s decision means I can now stay in my home and my future is much more secure as I have the freedom to sell the property in the future when I need to. What has been traumatic for me is that this level of serious relationship is not currently recognised by the law and I therefore had to bring this claim in court to achieve some security and to obtain this result. I hope my situation raises awareness for others to consider their own financial position in relation to their partner and consider whether they need to take advice to protect each other in future.”

This case highlights a number of factors, the most important of which to bear in mind is the potential for conflict and additional heartache should the inevitable happen when a person’s affairs are not in order. If you have any doubt about your own affairs #TalkToTollers

In the recent High Court case of Dellal v Dellal and Others [2015] EWHC 907 Fam the High Court declined to strike out a family provision claim brought against the Estate of Jack Dellal, by his widow Ruanne Dellal, on the basis that there may be evidence that considerable resources of the Deceased’s were held in trust.

Jack Dellal died in October 2012 aged 89 and had been a successful property developer. His Will executed in 2006 left the majority of his Estate to his widow. However the value of the Estate declared for the purposes of the inheritance tax return amounted to £15.4 million, which included minimal cash and no business assets. His wife claimed this was only a tiny fraction of his true Estate, with most of his assets being held in secret Trusts, bank accounts and gifts to children.

The Sunday Times Rich List had previously estimated Mr Dellal’s wealth at £445 million in 2012. Mrs Dellal therefore brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975, despite being the main beneficiary of his Estate, relying on sections 8 and 9 of the Act, which deem the deceased’s Estate to comprise the assets at his death, but also any other assets given away within the six years prior to the deceased’s death, with the sole intention of frustrating any claim under the 1975 Act.

Mrs Dellal told the Court that her husband had told her that he had a secret stash of money, believed to be £50 million. He had also transferred shortly after their marriage in 1997 his shares in his business, at the time worth £56.4 million, to his children.

Mr Dellal’s children by his first wife, a partner from an extra matrimonial relationship and his sister, applied to the High Court to have Mrs Dellal’s claim dismissed without a trial, on the basis that she had not indentified any gifts to the Defendants’ within the six years prior to his death, nor that there had been any bad motive as is required under the Act. In any event Mrs Dellal is substantially well off and therefore did not need further financial provision under the Act.

Judge Mostyn declined to strike out her claim, even though he was sceptical about Mrs Dellal’s estimates of her husband’s true wealth, making comment that the evidence that dispositions were made to the Defendants’ were very thin, based entirely on inference and unreliable sources of information.

If it is discovered that these secret trusts exist and were established within the six year time limit, then potentially if the Court finds in Mrs Dellal’s favour, the persons who received any gifts (or the Trustees) may be ordered to give back a sum equivalent to the Estate in order to satisfy Mrs Dellal’s claim.  In assisting the Court in coming to such a decision, the Court ordered that the Defendants’ disclose any documents relevant to this and adjourned the application until further disclosure has been made. The application to dismiss Mrs Dellal’s case will then be reconsidered and will be form the subject of a future blog.

If you have any questions regarding the contents of this blog, please do not hesitate to Talk to Tollers Solicitors on 01604 258558.

Jimmy Savile’s beneficiaries tried to remove his executors on grounds they were giving in too easily to those making claims against his estate following allegations of abuse. Their grounds were:

The executors asked the court to approve their scheme for compensating those claiming abuse, and their expenses. The court ruled that the executors could not be removed as:

It also ruled that the scheme appeared ‘sensible’ and ‘pragmatic’, and the court therefore approved it and the executors’ expenses.

Recommendations

Case ref: National Westminster Bank plc v Lucas and others Re Estate of Jimmy Savile (deceased) [2014] EWHC 653 (Ch)

Following a death, specified relatives, dependants and other people can challenge someone’s will by going to court and claiming ‘reasonable financial provision’ from the estate. Equally, if an individual dies ‘intestate’ (ie there is no will) and beneficiaries are not happy with what they are awarded, under the intestacy rules that govern how estates are divided up in these circumstances, they may also be able to make a claim.

Who can claim for a reasonable financial provision

The categories of people who can make a claim are:

What the court can order

If the court decides to make reasonable financial provision, it can order:

The criteria for making a claim

Spouses or civil partners do not have to be in financial need or financially dependent on the deceased to make a claim. The court will take into account:

However, there are special rules if there has been a judicial separation or separation order, and if there has been an application to the court for financial relief in, eg divorce proceedings between them. Take advice.

For former spouses and civil partners, the court can take account of age, children and contribution to the family. The circumstances of the divorce or dissolution may also be relevant, eg how long ago they split up, if they agreed a clean break settlement, and any evidence that they may have misrepresented their assets or income.

Other applicants will only get financial provision if they are in need or were financially dependent on the deceased. There are statutory guidelines that the court takes into account. These include:

For example, an adult son cannot simply claim that, as a child, he expected to inherit. He would have to show that he was in financial need, and special circumstances, eg that the deceased made promises to him or behaved towards him in a way that implied he felt some additional obligation towards him. Even then, it is clear that the smaller the estate relative to the competing claims, the less likely that his claim will succeed. And if, for example, the deceased has explained in the will, or in a separate note, why nothing was left to the applicant, this can be taken into account – although the court is not bound to follow the deceased’s wishes.

Time limits

When a person dies, the people named in the will to deal with the estate (the ‘executors’) or, if there was no will, the people that the law says are entitled to deal with the estate (the ‘administrators’) must apply to the court for an official document that proves they are the executors or administrators. These are called a ‘grant of probate’ and ‘letters of administration’ respectively.

A claim for reasonable financial provision must be made within six months after probate or letters of administration have been issued, although the court can extend this period in certain circumstances, eg if the applicant has not made an earlier claim because of negotiations with the executors or administrators.

Other reasons to challenge a will or inheritance

Other ways to challenge a will include:

For further advice please Talk to Tollers on 01604 258558

Widow, Rosana Berger, has been refused permission to bring her Inheritance Act Claim against her husband’s Estate out of time.

Mr & Mrs Berger were together for 36 years, until Mr Clive Zola Berger’s death in June 2005.  He was an extremely wealthy property developer leaving an Estate worth £7.5 million pounds. 3 months before his death, he had written to his sons stating that he wanted his wife’s income maximised and “to make absolutely sure that the Estate is not involved in the arguments and problems that can so often arise in Probate”.

Following her husband’s death, Mrs Berger complained that rather than selling properties to maximise her income, her stepsons had instead invested money back into the business, the benefit of which she was unlikely to live long enough to enjoy.

Rosana aged 84, accused her stepsons of failing to provide her with the income she needed to maintain her lifestyle. She felt that her net income of £72,000.00 a year was not enough to live on and maintain her 8 bedroom, £4.25 million mansion and pay the domestic staff to attend to the 30 acre home. Instead she wished to sell the property and buy a central London flat for £2 – £3 million pounds, claiming that she needed an annual income of £222,540.00 to live on.

Her claim for permission to bring an Inheritance Act claim for financial provision out of time was refused in the Appeal Court. Lady Justice Black felt that Mrs Berger had an arguable case and that despite her husband’s dying wish that she be generously provided for, the terms of his actual Will did not make reasonable provision for her future income needs. However because she had delayed by more than 6 years in bringing her Inheritance Act claim, her Appeal was refused.  Had she pursued her claim at Court within 6 months from the date of the Grant of Probate, she would not have needed anybody’s permission to launch her claim. The stepsons had done nothing to conceal the truth from her; she had been concerned about her income shortly following her husband’s death and had simply delayed too long.  Now the 84 year old is facing hundreds of thousands of pounds in legal fees. Lord Justice Moses stated that the stepsons had “shown an appreciation of their obligations” as trustees of their father’s Estate and said that he hoped that a way can be found to make “suitable provision” for their stepmother.

This case highlights how important it is to keep and observe limitation deadlines, especially in an Inheritance Act claim where the limitation period is 6 months from the date of the Grant of Probate, or 6 months from the date of the death if the Deceased died intestate. Claims attempted to be brought outside of that period require permission from the Court in the first instance and as this case highlights, permission to bring a claim out of time can prove tricky.

If you have any questions regarding the contents of this blog, please do not hesitate to Talk to Tollers, call us on 01604 258558.

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