Hard times lead to an increase in disputes over wills
18I08I09
Hard times lead to an increase in disputes over
Wills
In these difficult
financial times the incidence of disputes over estates when people
die is likely to increase. That is certainly borne out by
statistics on the High Court’s workload for 2007 which reveal that
inheritance disputes jumped by 330% and contentious probate actions
by 153% in just 12 months.
In another recent
decision which highlights this increase, the High Court has set
aside the Will of a wealthy philanthropist who left her substantial
estate to the son of her carer, to the total exclusion of her
family.
In reaching the decision
in the case, Deputy High Court Judge Sarah Asplin QC accepted the
family’s argument that the Testatrix, Mrs Devas, who had suffered
several strokes and was ill with dementia, could not have
understood what the Will said. As such, the Will was
pronounced as invalid and an earlier Will dated 2002 (in which the
family were named as beneficiaries) was reinstated.
The Court heard that in
1999, following the death of her husband, Mrs Devas moved from the
Cotswolds to Cambridge to enjoy the city’s academic
atmosphere. Mrs Devas was a philanthropist and lover of
reading who had previously provided funding for the establishment
of the Panizzi Lectures on books at the British Library.
However, by 2003 Mrs
Divas had suffered a series of strokes necessitating increasing
amounts of care and a carer, Mrs Zandra Mackay, was hired to look
after her.
In evidence, the family
claimed that following the appointment of Mrs Mackay they were
increasingly isolated from Mrs Divas to the extent that they were
not told when she became gravely ill and were, in fact, prevented
from seeing her in the last 48 hours of her life.
The Court also heard that
Mrs Divas’ wealth was substantially diminished in the time between
Mrs Mackay’s appointment and Mrs Divas’ subsequent death. In
particular, her cash wealth had been reduced from £665,000 to just
£26,000 and, whilst some of that expenditure could be explained by
care costs and day to day expenses, there were also various ‘large
and unexplained gifts’ to Mrs Mackay and a Miss Atkinson, her
secretary.
When Mrs Divas died it
was discovered that a home made document purporting to be a Will
had been executed in 2005 bequeathing the estate to Marcus Mackay,
Mrs Mackay’s son. The Court heard that, in fact, Mrs Divas
barely knew Mr Mackay.
The witnesses to the
purported Will were Mrs Mackay and Mrs Atkinson and, within the
terms of the Will, Mrs Divas’ family was expressly excluded in
terms which included what was described as an ‘uncharacteristic
attack’ on them.
Upon hearing all of the
evidence the Judge ruled that the 2005 Will should not stand as
valid and also that Mr Mackay must pay the legal costs of the
family for the proceedings. Moreover, the unexplained
lifetime gifts are currently the subject of a criminal
investigation with the papers soon to be placed before the Crown
Prosecution Service.
The case once again
highlights the fact that the Courts will take very seriously any
allegation that a Will should not stand as valid. Moreover,
they are perfectly prepared to set a Will aside if the evidence
suggests that a Testator lacked the mental capacity to understand
its contents.
It also demonstrates that
the Court will pay close attention to all factors that could be
seen as ‘suspicious’ such as the uncharacteristic exclusion of
family members to the benefit of more peripheral figures in a
Testator’s life and unexplained lifetime transactions.
It is always extremely
important to seek expert advice when making a Will but that is
particularly so in this increasingly litigious time. It
should be noted that the purported Will in the case mentioned above
was a home made document.
By seeking the advice of
a solicitor a Testator will ensure that there is proper record of
their reasons for making their Will in the terms that they
have. Moreover, their solicitor will take time to satisfy
themselves that they have the requisite capacity to make a Will
(however obvious that may seem) and that they are not being
influenced in any way and make a record of that fact.
The above case can be
compared and contrasted with another recent case regarding the
estate of a late Robert Perrins. Mr Perrins suffered from
multiple sclerosis and in his latter years had executed a Will
bequeathing his estate to his carer with whom he had begun a
relationship. Upon Mr Perrin’s death the Will was challenged
by his son who alleged that the Will was not properly executed and
also that his father lacked sufficient testamentary capacity to
execute it. Upon considering all of the evidence, including,
importantly, the fact that the deceased had had the contents of the
Will explained to him by a solicitor, Lewison J concluded that Mr
Perrins did in fact have the requisite capacity to execute the Will
and it stood as valid.
Both of the above recent
cases once again highlight the fact that Will disputes invariably
live and die on contemporaneous third party evidence. As
such, solicitor’s records could just make the difference between a
disputed Will standing as invalid or being disregarded.
By seeking expert advice
now a Testator can rest easy knowing that they have done all that
they can to potentially head off future disputes over the validity
of their Will and ensure that their wishes are honoured.