A mother knows her sons – More and more people are challenging wills

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In the latest UK200Group blog post John Wiblin, Partner and Head of Dispute Resolution Longmores Solicitors, discusses a recent case of contentious probate.

John Wiblin
High property prices have led to an increase in court claims over deceased estates by disgruntled family members who have not inherited their parent’s property or a share in it. Where parents want one of their children to live in the family home after their own death, that means that it is most unlikely that the estate will be divided equally between siblings, causing resentment and giving rise to suspicion that the outcome was manipulated by the person who benefited disproportionately.

In this article, I will explain how wills are most often challenged and then describe briefly about a recent case of mine in which the deceased had done everything in her power to avoid her sons fighting over her home after her death but to no avail.

Grounds for challenge to a will

There are several ways in which a disinherited child might go about challenging a parent’s will in these circumstances. The first is to challenge that it is a valid will at all. If it can be shown that the will was not witnessed or otherwise doesn’t meet the requirements of a valid will then any earlier will that is valid will be given effect to. Or, if there isn’t one, the rules on intestacy will apply and the child will probably do better in that case. Challenges to the validity of the signature on the will are rare – that is why wills are witnessed.

The most common challenges are to the capacity of the testator at the time the will was entered in to or that there alleged undue influence on the testator in making out their will . Or both. The former may be a fertile ground where the testator was frail, ill or hospitalised when the will was made. These kinds of cases turn on the evidence of witnesses including medical witnesses. In cases where the deceased was tended to until the end by a general practitioner who had known them for many years or by a consultant who had substantial dealings with their patient at the relevant time that sort of evidence may be abundant. In many other cases, however, there may be a paucity of good evidence and that will make it difficult for anyone wishing to challenge the will. That is because the burden is on them to show that it is more likely than not that the testator did not understand the consequences of their actions at the time they entered in to the will. If the will was prepared by a solicitor or professional will-writer a challenge on this ground is unlikely: those professionals would not have prepared the will if they had not been satisfied that the person instructing them understood its effect.

Persuasion is not undue influence

The concept of undue influence is often misunderstood. Clients of ours have complained that their sibling had been on what one described as ‘a sickening fake charm offensive’ toward the now deceased parent in their later years or that because of geographical proximity or other reasons a sibling had been closer to their parent and so ‘unfairly’ preferred in their will. Others felt that their parent ‘never liked me as much’ as their sibling. But testators are entitled to be unfair or biased. They can leave their estate to whomever they please. Subject to the provisions of the Inheritance Act 1977, which allows the court to interfere with the distribution of an estate to provide for certain classes of persons if they had relied on the deceased for maintenance before their death, the courts will not go behind the testator’s wishes. A claim of undue influence is a claim that the will does not reflect those wishes but rather the wishes of someone else. The courts speak of coercion such that the deceased’s discretion and judgement is overborne. Coercion is pressure that overpowers the testator’s own wishes without changing their mind. In that way it is distinct from persuasion. Where persuasion changes a testator’s mind, any resulting will reflects the testator’s true intentions and will not have been obtained by undue influence. It can only be challenged if fraud can be shown.

Judge said the testator ‘knew her own mind’

A recent case of mine that attracted the attention of the national press (‘Man beats brother’s bid for mothers £500k Hoddesdon home’ shrieked the Daily Mail) was unusual only in that our client’s late mother had so accurately predicted what would happen after her death. She had instructed a local firm of solicitors to prepare her will. The solicitor who assisted her would late testify in court that her client had been a ‘formidable’ lady who had enquired at some length about what steps could be taken to prevent her will being challenged after her death. She was not very pleased to be told that although steps could be taken they would not guarantee that there would not be a challenge. After her death, her older son John challenged the transfer of her home during her lifetime to my client - his younger brother Glen - on the ground of undue influence. At court, the judge dismissed all the claims. Although the judge accepted that John had felt ‘genuinely aggrieved’ by his mother’s decision to disinherit him, he concluded that she had thought John was ‘undeserving’. The judge described her as a strong-willed woman who ‘knew her own mind’ and that Glen had given up his career as a hairdresser to become her full-time carer.

Longmores Solicitors have been based in Hertford, Hertfordshire for over 200 years and have been consistently ranked by the legal directories as leaders in the fields of wills, trusts and disputes.

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