Increasingly, probate practitioners and will writers are finding themselves at the heart of disputes concerning testamentary documents or estate administration.
Contested probate litigation can be time consuming, not only for prospective beneficiaries but also for personal representatives and professional advisors, tasked with implementing the wishes of a testator. For that reason, it is useful to look at some of the more common forms of probate actions, to see what lessons can be learned and what steps can be taken to minimise the risk of future probate claims.
The most common forms of probate actions include (1) challenges to the validity of a will or codicil and (2) challenges to the provisions of a valid will (or intestacy rules), under the Inheritance (Provision for Family and Dependants) Act 1975. Here are some of the basic ingredients of the two types of claim:
Challenge to the validity of a will (or codicil)
Wills can be challenged on one or more of the following grounds:
1 Technical defect
Most professionals will be aware of the basic formalities set out in section 9 of the Wills Act 1837 (as substituted by the Administration of Justice Act 1982), which include the requirements that the will be in writing, signed by the testator (or some other person in his presence and at his direction) with the intention of giving effect to the will and witnessed by two or more witnesses, present at the same time as the testator.
Although fairly basic in their terms, these requirements have been the subject of much litigation. For example, a number of different cases have extended the general meaning of the testator's "signature" to include a partial signature, the deceased's initials, and an inky thumb print, along with other variations. Furthermore, the requirement that the will be signed in the presence of two or more witnesses can often give rise to difficulties, particularly where a professional has not taken proper steps to explain the execution requirements to the testator. In one particular case (Esterhuizen v Allied Dunbar [1969] 2 All ER), the Judge suggested a professionals failure to oversee the execution of a will might amount to negligence (as it did in that case).
2 Lack of Capacity
The question here is not whether a testator has general mental capacity but whether they have the requisite testamentary capacity to make a will. Banks v Goodfellow (1870) set out the criteria for determining testamentary capacity. The testator should (1) understand the nature of the Act and its effects; (2) understand the extent of the property being disposed of; and (3) be able to comprehend and appreciate the claims to which a person making a will ought to give effect.
The Mental Health Act 2005 is now in force and has introduced significant changes in certain aspects of the law relating to mental health. However, insofar as testamentary capacity is concerned, the new provisions largely reflect the test set out in Banks v Goodfellow. Section 2 provides that "a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain". Section 3 explains that "…a person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means)". Section 1 does, however, make an additional point that "A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success".
The case of Banks v Goodfellow is therefore likely to continue to be relevant in cases concerning the validity of wills, subject to the additional consideration of whether or not "all practical steps" have been taken to assist the testator.
Generally, the burden of proving that a will is valid rests with the person seeking to prove the will (i.e. the person defending an attack on the validity of the will). That applies equally to proving that the testator had capacity, although the starting point is that the testator will be presumed to have had capacity, unless and until the contrary is proved. In reality, therefore, it will fall upon the person challenging the will to show that a testator lacked capacity. This will usually be attempted with reference to the testator's medical records or a report from their General Practitioner. For that reason, it is vital that professional try to follow the "golden rule" referred to in a number of cases, including Kenwood v Adams, namely that where there is any doubt as to a testator's capacity, the professional instructed should ask a medical practitioner to witness the will or give their opinion on capacity. The professional should also discuss any previous testamentary dispositions and the reasons for changes to them and should take instructions in the absence of beneficiaries, who might exert influence over the testator.
3 Lack of Knowledge and Approval
It may seem quite a straightforward requirement that a testator must know and approve the contents of any will executed. Indeed, a testator is presumed to have known and approved the contents of a will, which has been properly executed. However, three specific circumstances give rise to litigation under this heading:
(a) a mistake in preparing the will – where a mistake in the preparation of the will means that the will does not reflect the testator's instructions. If the will was signed without noticing the mistake, the testator might not have known and approved all of the terms.
(b) where the testator suffers from a condition, which might effect their ability to know and approve the contents of the will, such as blindness or illiteracy. Ordinarily, attestation clauses are adapted to deal with these specific examples. For example, in the case of an illiterate testator, the attestation clause should confirm that the will has been read to the testator. If no such steps are taken, there is a risk that the testator will not have known and approved the contents of the will.
(c) where the circumstances surrounding the preparation of the will excite suspicion. This is often used as the "catch all" category of probate claims. Where a will is prepared in "suspicious" circumstances, the burden is on the person trying to prove the validity of the will to remove the suspicions and prove that the testator knew and approved the contents of the will. Suspicious circumstances might include where the will in question was drafted by a principle beneficiary, or simply where there is little or no information available regarding the circumstances in which the will was prepared.
4 Undue influence
This is a particularly difficult argument to sustain in relation to the validity of a will because it requires the challenger to prove either coercion or fraud. Evidentially, this can be very difficult because the key witness – the deceased – will not be able to give evidence. Nevertheless, significant litigation has arisen from allegations of undue influence, particularly concerning the point at which a beneficiary's "assistance" with a will can become coercion. The case of Hall v Hall 1868 LR1 P&D 481 offers some guidance, suggesting that "a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of some one else's".
5 Forgery
Again, this is a difficult argument to run. It is a serious allegation and although the challenger will only have to prove the forgery on a balance of probabilities (i.e. 51%), a successful challenge on this ground will require some very persuasive evidence. These cases will often be won or lost on handwriting evidence, which is often inconclusive.
If a will is found to be invalid, probate can be granted in respect of a preceding will or, if there is no other will, the estate will fall to be administered in accordance with the intestacy rules.
Inheritance (Provision for Family and Dependants) Act 1975
Successfully proving the validity of a will does not eliminate the possibility of litigation. Certain classes of beneficiaries (or prospective beneficiaries) can still challenge the provisions of a valid will, codicil (or the provisions of dictated by the intestacy rules) under the Inheritance (Provision for Family and Dependants) Act ("the Inheritance Act").
The Inheritance Act is intended to help Spouses, children, civil partners, cohabitees and other surviving dependants of the deceased who have been left to cope without sufficient money to enable them to get by. If a will (or intestacy) fails to make ‘reasonable financial provision’ then they can make a claim under the Inheritance Act for an order effectively increasing their inheritance.
Any claim must be issued within six months of the date of the grant of representation to the deceased's estate, although the Court does have discretion to allow out of time claims. Importantly, no claim can be before the grant has been issued. There is therefore a very small window of opportunity for Inheritance Act claims to be issued.
For claimants other than spouses or civil partners, in considering whether or not the provision made for a claimant is reasonable, the Court will look at what is reasonable for their maintenance and will take account of the matters set out in section 3 of the Inheritance Act, including the financial needs of the claimant and the beneficiaries, the extent to which the claimant was maintained by the deceased, and the size of the estate.
Claims made by spouses and civil partners are dealt with in a slightly different way. In considering whether or not to make an award to a spouse or civil partner, the Court will look at what is reasonable and not just what is reasonable for their maintenance. The additional considerations for the Court will be the age of the applicant and the duration of the marriage, the contribution made by the applicant to the welfare of the family of the deceased and the provision, which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by divorce.
This last consideration (what the applicant might have achieved on a divorce) is often taken as a starting point when calculating potential claims although the Court will consider all the issues set out above and will often depart from those financial provisions.
Case study: Shah & another v Joshi [2008] EWHC 1766 (Ch)
One of the best ways to identify potential issues that might lead to contested probate claims is to look at the facts and outcomes of cases, which have already been determined by the Court. The case of Shah v Joshi included a consideration of almost every aspect of these two most common types of claim.
BP Collins acted for Mr Shah in relation to his late mother's estate. Mr Shah was concerned that a document purporting to be the last will and testament of his mother and leaving the vast majority of her estate to her daughter (Mrs Joshi) was not a valid will. On the face of it, it appeared that the will had been executed less than four weeks before his mother died, when she was in a frail and infirm condition. The will represented a stark departure from an earlier will, which left the majority of the estate to Mr Shah. The principle asset in the estate was a two-thirds share in a property, in which the deceased lived with Mr Shah and his family. Mr Shah owned the remaining one-third.
The will was written in English although the deceased spoke only Gujarati. Mr Shah said his mother was illiterate and yet the will contained no attestation clause, confirming that it had been read to the deceased and translated for her. Fundamentally, however, the signature on the will appeared to be different to the deceased's usual signature, not only in terms of style, but also in substance; written in Gujarati, the signature read Nirmalaben Kantibhai Shah whereas Mr Shah maintained that his mother was known as Nirmalaben Kantilal Shah and, being illiterate, would not have known how to write her name any other way.
Mr Shah challenged the validity of the will, arguing that the signature on the will was a forgery and that even if it was not a forgery, his mother did not know and approve the content of the will (which also included a consideration of her testamentary capacity). Mr Shah also sought directions from the Court in relation to a proposed Inheritance Act claim on the basis that if the will was found to be valid, then it failed to make reasonable financial provision for him and his family. The effect of the new will could have been to effectively make Mr Shah's family homeless. If the will was found to be valid, Mr Shah's intention was to issue his Inheritance Act claim after the validity proceedings, as and when a grant was issued.
The six-day trial, heard by Mr John Randall QC, included evidence from handwriting experts (regarding the signature on the will), evidence from an expert on Gujarati custom and practice (regarding the difference in the names Nirmalaben Kantibhai ShahandNirmalaben Kantiblal Shah)and medical evidence in relation to the deceased's capacity and state of mind at around the time the will was said to have been prepared and executed. The solicitor who prepared the will was called to give evidence, along with the attesting witnesses and a number of other lay witnesses who gave evidence as to the deceased's relationship with her children.
The Judge found that the signature on the will was indeed a forgery and that even if the deceased had signed the will, she could not have known and approved its contents.
A number of lessons can be learned from looking at this case and also the basic themes of all contested probate claims:
Some of the technical requirements are fairly basic. However, solicitors and will writers should be careful to ensure that the formalities for a will are followed and proper advice is given regarding the execution of the document. Best practice would ordinarily dictate that a solicitor or will writer is present when a will is signed. If this is not possible, the professional should ensure they have a written record of advice to the testator, suggesting they are present for the execution (and, for example, offering to visit the testator, if they are unable to visit the professional) but if the client wishes to make their own arrangements, then giving clear instructions as to how the will should be executed.
As for checking capacity, professionals should do what they can to follow the "golden rule". They should also keep a careful note of all of the instructions they receive and advice they provide, as well as notes of conversations with the testator and particular questions asked to try to determine capacity. Will writers can be required to produce copies of their will files and provide a statement in accordance with the case of Larke v Nugus [2000] WTLR 1033and the impressions formed by the will writer and their subsequent assessments of capacity are likely to be less open to criticism and challenge if a will file is complete and comprehensive.
This is even more important in light of section 2 of the Mental Health Act, which provides that "a person is not to be treated as unable to make adecision unless all practicable steps to help him todo so have been taken without success". The test requires an examination of the "practical steps" taken by professionals to help a testator make a decision, in circumstances where they might lack capacity. Those "practical steps" should be well documented.
Generally, testators should be aware of the risks of future claims against their estate and should consider specifically the problems that might arise from leaving a will, which disinherits certain individuals or leaves their estate unequally between beneficiaries, particularly where those beneficiaries are all in the same "class".
Professionals should consider all of the potential pitfalls, which might lead to contested probate litigation. They should advise clients of the potential claims and how to best avoid a dispute in the future, bequeathing assets equally and fairly and ensuring that family and friends will understand and accept the reasons for any departure from what might be considered "the norm", perhaps by preparing a side letter of explanation, to be read in conjunction with the will upon the testators death.
However, whatever precautions are taken, there is no guarantee that litigation will not follow. Professionals should be alive to potential claims when dealing with estates and should try to identify potential problems at the earliest possible stage and consult an expert in the field of contentious inheritance.
In Summary, there are a number of grounds on which a will can be challenged, some of which are easier to establish than others. Even a valid will can be challenged under the Inheritance Act. And, if you have a client who is considering making a will in which the provision for family members might be perceived to be unfair, tell them to consider the disputes that are likely to arise in their memory, after they have gone.
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