Challenging the validity of a will for lack of capacity
We acted for the children of the Deceased in connection with a challenge to the last will of their late father, who died in January 2022. The disputed will was made in August 2021, a matter of months before his death, and left everything to the Deceased’s nephew and his girlfriend; the Deceased’s children were disinherited entirely. In contrast, the Deceased’s previous will, dating from 1997, left his entire estate equally between his children.
The disputed will was made at the height of the COVID-19 pandemic by a local firm of solicitors and their will file revealed that there were no attempts made by the solicitor who prepared the will to see the Deceased in person or even to make any sort of arrangement to be able to assess his capacity to make a valid will.
The Deceased’s estate was valued at £2 million and comprised of shares in a complex farming partnership and this presented significant hurdles regarding valuations and how the interests of the surviving partners were to be dealt with in the context of the dispute.
The claim was mediated in February 2023 and a settlement was achieved which provided for the last will of the Deceased to be varied so as to provide the defendants with a limited lump sum from the estate while preserving the majority of the estate for our clients. The structure of the settlement was framed in a way that preserved our clients’ ability to bring a professional negligence claim against the firm who prepared the last will to recover the sums which are to be paid to the defendants under the Deed of Variation.
This dispute highlights the issues which can arise, and which will undoubtedly continue to arise, as a result of the COVID-19 pandemic and the limitations which this placed on the legal profession, particularly in the context of the preparation and execution of wills.
1975 Act Claims
Defending a 1975 Act claim by a surviving spouse
We acted for the three children of the Deceased to defend two claims made by the Deceased’s wife; firstly, a claim to challenge the validity of a will made by the Deceased shortly before his death on the ground of lack of testamentary capacity and secondly, and in the alternative, a claim for reasonable financial provision from the estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975. The will validity claim was vigorously defended by our clients on the basis that there was no medical evidence, or evidence of any other form, to support the claimant’s case that the Deceased did not have capacity to make a will at the relevant time. The Deceased and the claimant were in the throes of a very acrimonious divorce at the time the will was prepared and it was therefore entirely rational for him to have wanted to prepare a will which made no provision for her. Furthermore, the witnesses to the final will were able to provide evidence of the Deceased’s capacity and understanding on the date the will was executed.
We also advised our clients in relation to the 1975 Act claim and, in particular, the relevance of the divorce proceedings and how the Court would exercise its discretion in these circumstances and when considering whether financial provision should be made for the claimant from the Deceased’s estate. As divorce proceedings were afoot, the correspondence which had been exchanged between the parties’ solicitors during the Deceased’s lifetime about the likely outcome of the financial remedy proceedings in the divorce was particularly relevant.
The claimant’s claims were settled at mediation and an agreement reached which provided for her to receive the Deceased’s share in the matrimonial home. Our clients received the bulk of the estate and we were also able to secure the return of a number of personal items belonging to the Deceased which the claimant had retained.
Advancing a claim for provision on behalf of an adult child
We advised the daughter of an eminent barrister and QC (as they were then known) in connection with a claim for reasonable financial provision from her father’s estate and were successful in obtaining a payment for her to allow her to meet her future maintenance needs. Our client was adopted by the Deceased and his former wife when she was seven months old. The Deceased divorced our client’s mother when she was 15 years old and later re-married and had a child with his second wife. The Deceased’s last will made no provision whatsoever for our client, leaving his entire estate to his second wife. The Deceased’s instructions for the will revealed that he believed adequate provision had been made for our client via his divorce settlement from their mother.
Shortly before the Deceased’s death, our client gave birth to a son who was later diagnosed with significant health and other care needs. As a result, our client was unable to work and was classified as her son’s carer. It was also unclear as to the extent to which our client would be able to return to the workplace in the future and, accordingly, she was in a dire financial situation and was unable to meet her monthly mortgage payments or to meet other routine outgoings.
Our client’s claim for provision from her father’s estate was robustly defended by the Deceased’s wife, including on the grounds that the Court would not have jurisdiction to make an award under the 1975 Act as the Deceased was, in fact, domiciled in the US at the date of his death. In conjunction with King’s Counsel, we advised our client in relation to the issue of domicile and her claim for provision under the 1975 Act and we entered into negotiations with the defendant’s solicitors in correspondence, resulting in an agreement which provided for our client to receive a lump sum payment sufficient to pay off the majority of her debts and to allow her some more time to care for her son. We also secured payment of our client’s costs by the defendant.
Estate administration disputes
What information is a beneficiary entitled to?
We acted for the executor of the estate of a former professional footballer, to defend an application for pre-action disclosure brought by the son of the Deceased, who was one of the residuary beneficiaries..
Following the Deceased’s death, his son, the applicant, embarked upon a seven-month long campaign to demand excessive, and almost exclusively irrelevant, information from our executor client. The demands extended from requests for explanations of payments made from the Deceased’s account for petrol and supermarket shops to requests that our client establish how the Deceased spent the proceeds of sale from a property disposed of more than ten years before his death.
We assisted our client in responding to the requests received from the Deceased’s son, advising her as to the extent of the information which it was reasonable and proportionate for her to provide. We then acted for the executor in successfully defending an application for pre-action disclosure which was dismissed in its entirety by the High Court. We were also successful in obtaining an adverse costs order against the Deceased’s son which allowed our client to recover her costs directly from his share of the Deceased’s residuary estate.
Successful claim to remove an executor
We acted for the daughter of the Deceased who was appointed as an executor of her father’s estate alongside her brother and a third professional executor. The Deceased’s estate was complex and provided for various gifts of land and property to pass to our client and her brother, with the residuary estate then being divided equally between them. The files of the solicitors who prepared the will showed that the Deceased’s settled intention was to ensure that his two children received equal provision from his estate; unfortunately, due to the value of the property subject to the specific gifts under the will, the Deceased’s intentions would not be achieved if the will was administered in accordance with its terms.
Following the Deceased’s death, our client experienced significant difficulties in communicating with her brother and progressing the administration of the estate. The third professional executor indicated that he did not wish to be involved at an early stage and agreed to have power reserved to him when the grant was applied for. It was therefore left to our client to try and move matters forward. An agreement was reached by our client and her brother to appoint an independent firm of solicitors to administer the estate; however, no progress was made as a dispute arose as to the interpretation of the wording of the will in relation to certain specific gifts.
As a result of the impasse reached between our client and her brother, we assisted our client in bringing an application to appoint an independent professional personal representative in place of the executors named in the will on the grounds that relations between her and her brother had broken down and were preventing the due administration of the estate. Although initially resisted, our client’s application was agreed by her brother very shortly before it was to go before the Court. Accordingly, an Order was agreed which appointed a professional to take on the role of administering the estate and confirmed that our client’s brother would meet our client’s costs of the application personally and from his share of the residuary estate.
This case was a good example of the importance of adopting a pragmatic and cost-effective approach to a dispute. While our client had acted properly at all times and had made every effort to progress the administration, it was sensible for her to offer to step down as an executor to avoid any future conflict and to minimise the risk of future disputes from arising.