Expectation and disappointment. It is easy to see why a disappointed beneficiary or person excluded from a Will against their expectations may seek to challenge and set aside the deceased’s will.
Disputes regarding Wills are often very complex, time consuming and can be incredibly damaging to family relationships with the propensity to revive historic feuds and long buried resentment.
Challenges to the validity of Wills can also be incredibly costly to the parties involved and to the deceased’s estate and therefore the merits of achieving a swift and cost efficient outcome are abundantly clear.
I have set out below a scenario based, with some artistic licence, upon two cases with which I have been involved with in the recent past:
*Jim and Pam were happily married for over 30 years. Unfortunately, Pam died unexpectedly 15 years ago (2007). Jim continued to live alone in their marital home and he was comfortably well off, however he was no great cook or housekeeper and therefore needed some help from time to time. Approximately 12 years ago, Jim engaged the services of Phyllis to do some cleaning and cooking for him.
Jim and Pam had two sons; Oscar and Kevin, both of whom left the family home a number of years ago, they both married and moved to different cities. They visited Jim at various times of the year, however they were not around to help him day to day.
Roughly six years ago Jim started to become a bit forgetful at times, this transpired to be the onset of Alzheimer’s disease. Around the same time, Jim began to rely on help from his neighbour, Michael, with gardening, DIY etc.
Jim and Pam had mirror Wills at the time of her death. Approximately one year after her death (2008), Jim amended his Will, leaving his estate to Oscar and Kevin in equal shares.
Approximately six years ago (2016), Jim amended his Will again, this time deciding to give 20% of his estate to Phyllis in gratitude for her help. The remaining 80% of the estate was split equally between Oscar and Kevin.
As time progressed, Jim’s health deteriorated. He became more reliant upon help from Phyllis and Michael. Approximately three years ago (2019), he decided that he wanted to reward them for their help and amended his Will again, this time giving a 30% share of his estate each to Phyllis and Michael with the remaining 40% split equally between Oscar and Kevin.
Unfortunately, Jim passed away last month..
Oscar and Kevin received letters from Stanley, their father’s executor, advising them that they were to receive a gift of 20% of Jim’s estate, which was fairly substantial. Having compared notes, Oscar and Kevin were shocked to discover that their combined legacy amounted to only 40% of the estate. They decided to lodge a ‘caveat’ with the Probate Registry, the effect of which is to prevent probate being granted in respect of the 2019 Will. They also instructed a solicitor to write to Stanley to instigate a challenge to the validity of the last two Wills, chiefly on the basis that Jim lacked testamentary capacity in 2016 and 2019 due to Alzheimer’s. They also allege that Jim had been subject to undue influence by Phyllis and Michael to amend his Will in their favour.
Clearly, it is in the interests of Oscar and Kevin to try to set aside the 2019 Will and if possible, the 2016 Will too, in order to increase the size of their shares of the estate and set aside the gifts to Phyllis and Michael.
Where a Will is “… duly executed and appears rational on its face, then a court will assume capacity”. We shall assume that this bar is met in the present case and thereafter the evidential burden switches to Oscar and Kevin to raise a real doubt concerning Jim’s testamentary capacity, which they may be able to do, pointing to his Alzheimer’s diagnosis and worsening health in his later years.
If Oscar and Kevin raise real doubt about capacity, the burden will shift back to Stanley, and by extension, to Phyllis and Michael. Medical evidence is likely to be required from Jim’s GP or an independent medical expert. The Will writer responsible for drafting the Wills in 2019 and 2016 would also have to be satisfied that Jim had testamentary capacity at the time of making them and evidence would be required from that Will writer as to how they came to the view that Jim had capacity.
The allegation of undue influence would have to be proved by Oscar and Kevin. Undue influence would require Jim to have been coerced into making a Will that he did not want to make. This is a high burden of proof for Oscar and Kevin to meet and for that reason successful claims based upon undue influence alone are relatively rare. Undue influence is generally pleaded in tandem with lack of testamentary capacity and want of knowledge and approval.
Let us stir the pot a little further:
- What if, in addition, Jim and Phyllis had fallen in love and married at some point prior to his death? If the Wills of 2019 and 2016 had been set aside, could Phyllis still have a claim against Jim’s estate as his surviving spouse? Quite possibly, by virtue of the Inheritance (Provision for Family and Dependants) Act 1975.
- What if Phyllis had told Jim, untruthfully, that Oscar had made amorous advances towards her, thereby turning Jim against Oscar and causing him to amend his Will to significantly reduce Oscar’s inheritance or disinherit in him entirely? It could be argued that Phyllis’ actions amount to ‘Fraudulent Calumny’ – casting untrue aspersions on the character of a natural beneficiary which causes the testator to change their Will to the detriment of that beneficiary.
Whilst the scenarios set out above are a simplified walk through, and do not address other legal points which typically arise, these examples highlight the fascinating legal and factual complexities of contentious probate disputes and demonstrate the need for robust legal advice for a personal representatives facing validity challenges, or beneficiaries, be they disappointed or otherwise.
*All names in this blog are fictitious.
If you would like to speak to someone in relation to any of the points covered above, then please contact Karl Medd on 01642 356500 or email kmedd@jacksons-law.com.
