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Andrew Bishop, Solicitor at Access Legal Solicitors

Validity proceedings – risks and rewards

Andrew Bishop, Solicitor at Access Legal Solicitors

12
Oct

TWPform

In this article, we explore the legal action that hit the headlines recently in respect of the court case being brought by Sam James (“Sam”) against his late father’s estate.

The case highlights the complexities of will disputes.

The Facts

On the facts publically available:

  • Allen James, the deceased, signed his final Will in 2010 which disinherited his son (Sam) in favour of his wife and daughters;

 

  • Allen had been suffering from dementia for a number of years;

 

  • Sam claims that the will is invalid as a result of Allen lacking mental capacity and being subject to pressure.

Grounds of challenge

Mental capacity

From media reports, the claim appears to have focused on the fact that Allen had dementia for a number of years prior to when he made the 2010 Will. As a result, Sam argued that the Will is invalid on the ground of lack of capacity. From our experience, a formal diagnosis of a mental illness is a helpful indicator of lack of capacity, but it is far from conclusive. The law in this area shows that careful consideration must be given to the deceased’s condition on the actual day and time of making the Will. Capacity can change.  In the recent case of Burns v Burns the deceased, who had moderate dementia, was held to have capacity.  Recent court cases tend to show that judges will give greater weight to the evidence of the will writer or solicitor that prepared the Will and also those who witnessed the deceased’s capacity at the time in question.

For that reason, it is important to have a Will prepared by a qualified legal professional to ensure that Will disputes stand the best chance of being avoided. A lawyer preparing a Will is recommended to follow the “golden rule” and ensure detailed file notes are kept and a referral to a suitably qualified medical practitioner is made when capacity is in question.  If available, this evidence will be of significant importance in this case.

Undue influence

As indicated in the media reports, it is also likely that Sam argued that his father was subject to undue influence. This ground of challenge can invalidate a Will but in practice it is hard to prove as it must be shown that the deceased was subject to co-ercion which overpowered their true wishes. On the facts of this case, it appears that Sam believed his father was being pressured by his wife and that his wife had previously intercepted another version of his father’s will and had him sign the version in dispute. These facts may be consistent with a claim for undue influence, but from our experience the difficulty is proving these facts with documentary evidence as often matters take place behind closed doors.

Comment

We see a lot of Will validity cases, but it is relatively rare for such cases to go before a court. This is due to costs of taking such action and also, significantly, because such private family matters are then opened up to the public. An out of court settlement, such as mediation, is often the preferred option due to its informal and confidential structure.

As an alternative to disputing a Will, it is often helpful to consider making a claim against a particular asset by arguing that it effectively passes outside the estate. In this particular case there was a clear tone in the media reports that Sam considered that he was entitled to the Farm by virtue of promises made to him by the deceased and due to the fact he committed many hours in managing the business. Such claims give rise to arguments of “proprietary estoppel” which are essentially claims for broken promises. These arguments should always be considered as an alternative to challenging the will directly.

The judgment in this case is not yet available so it remains to be seen how the court will resolve the issues in dispute.

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