Challenging A Will. Three Recent Cases
I don’t know whether there has been a big increase recently in the number of Court cases where disappointed family members are challenging their Late Parent’s or Partner’s Wills, but it does seem like it.
Since 2015 when the case of Ilott v Mitson was decided – I wrote a Blog about that – link here –there has been a rash of similar challenges. Perhaps because the challenge in Ilott was successful, that might have encouraged family or dependents to have a punt at Court when they feel a bit short changed by being left out of an expected inheritance.
So the next one in 2016, was the case of Ames. Again I Blogged -here – that If Ilott v Mitson had turned over a perfectly valid will in favour of an estranged daughter then surely Ames would do the same, since in Ames the daughter was not estranged and had been living off her father right up to his death.
So far, so inconsistent.
Both of those cases were brought on the basis of the Inheritance (Provision for Family and Dependant) Act 1975 claiming that the deceased had failed to provide “reasonable financial maintenance” – in other words that the person making the Will and leaving out the claimant was ignoring a proper duty to make financial provision in favour of a person who was lacking financial means and was dependent upon their support.
This claim seems to me to be very weak in the Ilott case. That claimant had not received a penny from her mother in 37 years, so whilst she was in considerable financial difficulty I do not understand why the law says that mother’s money should support her after mother’s death when it could not be claimed before the death. The law says among other things, that “reasonable” financial provision must be made for adult children. I suppose, one person’s “reasonable” is another person’s “tenuous” possibly.
The claim seems to me stronger in the Ames case. There the daughter had been in receipt of money from her father right up to his death.
But the weak claim was a success, and the strong one failed.
The failure of the strong one had the merit though, that it failed because the Judge decided that it is the law of England that a person can make a will and dispose of his/her property freely and hooorah for that.
So now, three more. Is sanity and, even more importantly, consistency, prevailing?
The case of Habberfield from January 2018
The case of Thompson v Ragget from March 2018
The case of Nutt, hot off the press from April 2018
Taking them in order, what is the law telling us now about contesting Wills?
Firstly, although each of them is indeed a contest and, as they always are, based upon a perceived failure to give reasonable provision in the Will of the deceased person, only the second case is specifically claiming that the claim is one which should be allowed because of the provisions of the 1975 Act.
The first case invokes the Act as a fall-back, but the gist of the claim in Habberfield is that it falls within the doctrine of the law invented by Lord Denning, called proprietary estoppel. Or as the layman might describe that doctrine – “Fairness”.
It’s not fair, says the claimant Lucy Habberfield, that because my father promised me that I would be able to succeed him when he retired, I have therefore worked for more than twenty years in his dairy farm. Working there through my pregnancy, working long hours, working for low pay, and working with very little time off.
And yet, her father left the farm and everything he owned, to his widow and left nothing to Lucy.
The full judgment confirms that because this is not fair, Lucy shall receive over a million pounds now from the estate.
So this was a case in which the 1975 Act did not come into the Judge’s decision. He found that a person may not expect the Courts to give effect to a Will which disregards a promise, when the person to whom the promise was made has relied upon it and spend some thirty years of hard graft on low pay because of it. Thank you, Lord Denning. Fairness.
Full report of Habberfield, click here
In the second case, Thompson v Ragget the deceased had made a Will in which he said “I have specifically made no provision for my partner Joan ……” and “I confirm Joan has her own finances and is financially comfortable, she has her own money and her own savings”.
Long story short: Joan, who was Mr Hodge’s “common-law wife” (there is no such thing) for forty two years, and at the time of his death so far from being financially comfortable, she was living in a care home with a total of £2,500.00 in the Bank.
Clearly, said the Judge, Mr Hodge was quite wrong in his statement that Joan had plenty of money. After 42 years together this was a clear case where the terms of a Will should be overturned, under the 1975 Act.
The advice which lawyers always give to someone who is making a Will and wishes to leave out a person whom one would usually expect to be included is – make sure that your Will explains that you are leaving X out of your Will on purpose and explain why.
Clearly, Mr Hodge did exactly this, but it was therefore possible to see that his stated reason was absolutely mistaken. This helped the Judge to put matters right.
Law Report of that case – click here –
Finally, the case of Nutt. The report of it is – click here –
After the above two big wins for the claimant, perhaps the applicants here were thinking, maybe all you have to do to get a Will turned over in your favour, is go to Court and say “It’s not fair”?
[Actually that can’t be right because the third claim was first made in 2005 but hey, don’t spoil a good story]
In this case Mother was a widow with three adult children. As the Judge heard, mother had clearly decided, – two of my children have their own houses, the youngest does not.
Also, the youngest did her gardening and helped her more in the house and overall spent rather more time with her than the others did. The upshot was that Mother left her money to him and not to the other two. Her Will was made in 2010.
So when she died, here was a Will which the two disappointed children did not like. They were not in need of financial provision, they had adequate assets and income so the 1975 Act was not the basis of the claim. They just weren’t happy.
The claimants asked the court to say that their mother’s earlier will of 2005 should be accepted to probate. In that Will she had left her property equally between all three children. The children liked that Will better.
They claimed in respect of the 2010 Will that
1. Mother hadn’t signed it in the presence of two witnesses or
2. If she had, then she did not have mental capacity to make a Will or
3. If she had, then she did not know what this Will actually said or
4. She had been brainwashed or unduly influenced by the youngest child.
Did they leave anything out?
At the actual hearing, it turned out that they were unable to produce anything along the lines of real evidence for any of this.
As an example in respect of ground 4 undue influence, they claimed that their younger brother was a “domineering personality” who dominated his mother.
As evidence to support that claim, they told the Court how he had told his mother once to change her coat before going out because the one she was wearing would not keep her warm enough. Well, really, was that the best they could do?
And at the end their claim was unsuccessful. As the Judge explained and in my hope may all Judges say the same “My task is not to decide whether the last Will was justified or fair. I am only required to say – “Is It Valid?””
What have we learned?
• That if you make a Will and its terms break promises you have made to someone would has relied to their disadvantage on that promise being kept, you can expect the Will to be set aside.
• That if your Will makes it clear that you have decided the terms of your Will upon mistaken facts, you can expect the Will to be set aside.
• That if you don’t like your Mother’s Will, but she hadn’t made any promises, nor based her decisions on mistaken beliefs, then don’t think the Judge will agree with you just because you make a fuss about it.
So in all three cases, ten out of ten to the Judges.
Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us email@example.com and firstname.lastname@example.org.
Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com