I described in a previous article the difficulties faced by adult children who bring a claim for financial provision from their deceased mother or father’s estate. Historically a court would be reluctant to make an award. It would judge that adult children who were capable of earning their own living were unlikely to be sufficiently deserving to warrant further payment from their parent’s estate. Conversely, if they were not so capable and “special reasons” existed to explain their financial needs (not related to their own profligacy or lack of effort), they might succeed. Subsequent cases sought to water this down somewhat as of course there is no reference to “special reasons” in the Inheritance Act.
In Ilott v Mitson (2011 EWCA civ 246) the court went further and completely restated the balancing exercise required by section 3 of the Inheritance Act. Section 3 is in fact somewhat clear. A number of factors must be considered by the court to determine firstly whether the Claimant is deserving of financial provision and secondly, the extent.
Whilst it appears to be suggested by at least one of the lawyers involved in this decision (refer to the article by James Aspden in the 149th edition of the ACTAPS newsletter) that this makes outcomes in these cases difficult to predict, I would beg to differ. Financial need for example is easy to show and prove. Similarly the financial position of those benefitting from the deceased’s estate. Moreover other questions posed by section 3 are similarly uncontentious. For instance health,although despite difficult on going symptoms in a recent case which were well documented in his medical records, one of my client’s medical difficulties were certainly not accepted!
Basically the court will judge these factors weighing those matters that are for and against.
I am reasonably clear over the type of Claimant I would be prepared to accept, on for instance a no win no fee arrangement in an Inheritance Act claim. Further, the proof of the pudding is of course in the eating!
However, I confess that Heather Ilott would not have been a client I would have taken on and expected to win. She lacked money but then she had chosen a course of having children reliant on state benefits in support. I don’t recall any major health problems either – in short she was a very unattractive candidate.
I cannot though disagree with their Lordships decision in this matter. They could not question the discretion of the learned District Judge who decided the case at first instance. They could only question the factors he took into consideration when exercising it and given those referred to the section 3 factors I mention above, his decision could not be impeached.
Rather (and this is where I agree with Mr Aspden) a game of chance was not created by this decision but did arise from the fact that this matter went to a trial (and appeals beyond). Taking a case to a full trial is a risk and any litigation lawyer will apply a percentage of at least 10% (if not higher) to even the best of claims.
Clearly one must be cautious, very very cautious about taking even the best of claims to a trial. Mediation or negotiation from the position of strength will often yield a reasonable result but moreover CERTAINTY and I am afraid that certainty will have its price.

Dispute resolution – what does it actually mean? Most potential claimants consider it must mean (for them) a successful day in court. Lawyers of course are much more circumspect. They know that once a case has reached a Judge, to a degree the case is beyond their control or put it another way it is out of control! Successful dispute resolution in will dispute claims and/or Inheritance Act claims is a combination of pre litigation actions including early disclosure and formation of the claim by a carefully worded claim letter and early “alternative dispute resolution”. Yes this can involve the gathering of evidence and tetchy correspondence and sometimes this can be cathartic for both sides. However a careful evaluation of the costs and risks of any claim should really be sufficient to persuade all but the most foolhardy of litigators that a settlement and yes “certainty” is the best course is almost all cases.
What form should alternative dispute resolution take. Each case is different but I find “mediation” to be the most successful. A mediator of facilitator shuttles between the parties, cajoling, prodding and questioning. Done correctly it is highly effective. Other methods can include a simple discussion over the telephone or round a table although the latter within the context of the heat generated in will contest cases can in my experience inflame the arguments.
Another method is “early neutral evaluation” by a recognised expert in the will or inheritance dispute field – usually a Barrister. I regret that I have had a healthy experience of this in these cases but I am willing to be persuaded and the right case may very well come along in the future.

This is our reply to a recent enquiry which might assist:

Thanks for your interest in our service. Please see quote from Mr Justice Briggs in Key v Key below. In essence the “golden rule” is a touchstone for best practice. However, it does not mean than where it is not followed a Will is invalid. It may mean that it is suspect or more open to question that it ought to be if the golden rule had been followed and from that, where it is found a will is invalid, the Solicitor who prepared the Will could be vulnerable for a claim against him for the costs of the dispute. By all means come back to me if you require further help or assistance.

7. The substance of the Golden Rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings: see Kenward v . Adams (1975) Times 29th November 1975; Re Simpson (1977) 121 SJ 224, in both cases per Templeman J, and subsequently approved in Buckenhan v . Dickinson [2000] WTLR 1083, Hoff v . Atherton [2005] WTLR 99, Cattermole v . Prisk [2006] 1 FLR 697, and in Scammell v . Farmer [2008] EWHC 1100 (Ch), at paragraphs 117 to 123.
8. Compliance with the Golden Rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope. As the expert evidence in the present case confirms, persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.

Costs in contentious Will disputes

1. The general rule is that following a trial, costs will follow the event. In other words the loser pays (his own costs and the winning party’s).
2. This is varied in probate claims or will disputes, as the Court has an inquisitorial role in relation to Wills. In other words the court has an overriding duty to determine the validity of a Will. The effect of this means that to a large extent the party’s to a will dispute claim in relation to which court proceedings have been issued and served have to allow a court to consider the questions arising out of the claim, regardless of whether they have managed to resolve their differences before a trial. Accordingly, notwithstanding an agreement and therefore settlement, the court will still demand that it considers the evidence and position carefully before any order finalising the dispute is approved.
3. This has obvious consequences for costs as of course if the court finds the questions about the Will are justified, it may not award costs way one or the other but either allow costs to be paid for out of the estate or by the parties to the dispute, notwithstanding the outcome.
4. The exceptions to the general rule that “costs will follow the event” in will dispute cases were articulated by Sir Gorell Barnes P in Spiers v English as follows:

“In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have really been the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of these principles, which, if not exhaustive, are the two great principles upon which the court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shown why costs should not follow the event. Therefore, in each case where an application is made, the court has to consider whether the facts warrant either of those principles being brought into operation”

Further detail will follow…….

How to contest a Will – deathbed wills and mistake in execution (or what not to do when you make a will!!)

1. The Wills Act 1837 s9 governs its execution. A will cannot be held      valid unless it complies with the archaic requirements set down      thereunder, so that:

No will shall be valid unless:-

(i)                 It is in writing and signed by the testator or by some other person in his presence and by his direction; and

(ii)               It appears that the testator intended by his signature to give effect to the will; and

(iii)             The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(iv)              Each witness either:-

(a)   Attests and signs the will; or

(b)   Acknowledges his signature

In the presence of the testator (but not necessarily in the presence of any other witness) but no form of attestation shall be necessary

2. In essence, a will cannot be valid unless it is signed by the      testator (or by some other person in his presence and by his direction) in      front of two witnesses who also in general sign the will in front of each      other (note though the testator can acknowledge his signature to the      witnesses and the witness(es) can also acknowledge his or her signature in      front of each other and the testator).
3. A testator on his deathbed can then direct some other person in his      presence to sign his will on his behalf. This was tested recently in Barrett      v Bem (Court of Appeal). The difficulty for the proponent of the      will in that case is that prior to the appeal trial she had alleged the      testator had signed his own will. She had changed her tune somewhat after      the trial (which she lost!) alleging in fact that she signed the will at      the testator’s direction. One would imagine that her credibility was open      to question at this point. The Court of Appeal found against her as there      was insufficient evidence the testator had made a “positive and      discernible communication” that he wanted his will to be signed on his      behalf.
4. Moreover it is clear by Marley v Rawlings (Court of Appeal)      that there can be no variance or watering down of the requirements for      executing wills laid down by the Wills Act 1837. In this case “mirror      wills” were completed for a husband and wife but unfortunately they      executed each other’s will instead of their own. Unfortunately the      Solicitors concerned did not notice either (no doubt the subject of a      separate claim!!). Whilst it was entirely clear this was a genuine mistake      on the part of all concerned, it could not be undone by any “smoke and      mirrors” on the part of the court. The President of the Queen’s Bench      Division, Lady Black, said she had reached her decision “with great regret”      as an innocent beneficiary was effectively disinherited.

How to contest a Will – bringing a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 (continued)

1. As mentioned already, whereas if you contest a Will’s validity you      are not accepting it as a legally valid document, a claim under the      Inheritance (Provision for Family and Dependants) Act 1975 is only made      after a Will has been accepted as valid by the Court Probate Service and      can only in fact be made once a Grant of Probate has been obtained. In      effect, it is a claim against the estate for financial provision. It is      not a true Will contest claim or will dispute.
2. A claim under the Inheritance Act is founded against a background      of an individual’s right to leave his or her estate as he or she sees fit.      In other words each of us has a right to leave our money and assets to any      individual, charity or other corporate or legal body. Battersea Dogs Home      or a hospital or charity are often chosen and in place of the individuals      own children!! The courts will strain to uphold the testator’s last wishes      by his Will and as described already, this can mean that claims by adult      children of the deceased are much more difficult to sustain.
3. Special reasons – an adult child really needs to show      that there is a “special reason” why their claim should succeed beyond      their own failure to earn sufficient for their needs and/or excessive      spending beyond their means. Whilst this is denied as a factor in      successive Judgments about claims under the Inheritance Act, it is really      the easiest way of describing the best claims which are likely to succeed      where an adult child of the deceased is the claimant. Typical examples      might include adult children who have disabilities preventing them from      working or whose work has been interrupted because they are looking after      a child with disabilities.
4. Of Course a child of the deceased under the age of 18 would have a      good claim under the Inheritance Act.
5. Favoured applicants under      the Inheritance Act

5.1  These include the spouse (ie widow or widower of the deceased);

5.2  Unmarried “partners” of the deceased;

5.3  Those the deceased maintained prior to his or her death, and as mentioned

5.4  Their children under the age of 18

6. The Spouse is entitled to such provision as he or she would have      received if instead of death, there had been a divorce. In general terms      the courts will weigh up an individual’s entitlement on divorce by varying      a 50:50 split of the assets, taking into account the length of the      relation, children and dependants, the accumulation of assets during the      relationship and who helped achieve that.
7. Unmarried “partners” are treated relatively generously as well. The      courts will take into account when considering whether the financial      provision they have been left is reasonable, their standard of living      before the death.
8. Critical points to consider

8.1  There is a six month time limit following the Grant of Probate in which to bring a claim under the Inheritance (Provision for family and Dependants) Act 1975

8.2  There has to be a Grant then before a claim can be issued

8.3  Whilst this time limit can sometimes be extended, it should be noted the same time limit applied where an application has to be made to bring into the “net estate” assets previously owned jointly but which pass outside of the terms of the Will (eg. a jointly owned house) and that cannot be extended

8.4  A claim can be brought where the deceased left no Will (ie died intestate)

8.5  If the Claimant under the Inheritance Act dies during the process of claiming (ie before trial), his or her claim ceases and cannot be continued by a relative on behalf of their estate

8.6  A claim can only be made against the estate of a person who died whilst domiciled in England and Wales (British citizens who were previously living abroad in say Spain may no longer be classed as domiciled in England and Wales)

8.7  Overall, a claim under the Inheritance Act carries with it considerable risks for all the parties – a successful claim is likely to lead to an Order that costs of the dispute be paid by the estate

How to contest a Will – bringing a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975

1. This blog follows on from our brief guide dealing with disputes      over the validity of a Will. It will probably be helpful if you read that      before reading this! However in general whereas if you contest a Will’s      validity you are not accepting it as a legally valid document, a claim      under the Inheritance (Provision for Family and Dependants) Act 1975 is      only made after a Will has been accepted as valid by the Court Probate      Service and can only in fact been made once a Grant of Probate has been      obtained. In effect, it is a claim against the estate for financial      provision. It is not a true Will contest claim or will dispute.
2. A claim under the Inheritance Act is founded against a background      of an individual’s right to leave his or her estate as he or she sees fit.      In other words each of us has a right to leave our money and assets to any      individual, charity or other corporate or legal body. Battersea Dogs Home      or a hospital or charity are often chosen and in place of the individuals      own children!!
3. I am often approached by children of a deceased who believe they      have a right to their parent’s estate. There is no such right in      law!!
4. A claim then under the Inheritance Act      by one of the list of potential claimants granted the right to bring such      a claim by (section 1) the Act, doesn’t necessarily lead to an award. The      Court has a wide discretion in relation to such claims and will strain to uphold the wishes of the      deceased. However there are particularly favoured applicants – generally      the husband or wife of the deceased. The law grants a husband or wife      legal rights to their spouse’s assets, rights which are  upheld by the courts during a divorce.      Under the Inheritance Act then the Court is obliged to weigh the financial      provision a wife or husband might have received on divorce against what      was left by the terms of the Will. If inadequate a claim can be made.
5. Adult children in general are not favoured applicants under the      Inheritance Act, in particular those of working age. Case law (ie old      cases where decisions about financial provision for children have been      made) tends to indicate that there must be a special reason (or      overriding moral obligation) other than ones ordinary duty to one’s      children to persuade a Court to make an award. However this is always      denied by Judges dealing with these claims. Don’t believe them!! For further reading (!!!) have a look at      Heather Ilott v David Mitson and others (look it up at http://www.bailii.org). This is an      unusual case where it would appear an unfavourable claim (by an adult      child who had no real relationship with her mother and who had survived on      benefits all of her adult life) was successful. However, it is doubtful      this will make much difference to the way these cases are dealt with.      Closer scrutiny of that case shows the Court of Appeal were merely      affirming the District Judge’s reasoning (was reasonable) – a District      Judge initially heard the claim which was appealed.
6. What is a special reason?? I will deal with this next week.

How to contest a Will – a Noddy’s guide (no disrespect to Noddy!!)

1. In general your will dispute centres on either a claim against the      validity of the Will or a claim for financial provision under the      Inheritance (Provision for Family and Dependants) Act 1975. The latter is      a claim against the estate, not a Will contest claim per se whereas a      claim against the validity of a Will does involve in our view a true      contest about the Will (as opposed to the estate). We are then dealing      with a will validity claim only      below. Anyway enough semantics, here are some dos and don’ts.
2. DON’T…proceed with your claim unless you are certain that if the      will is declared invalid you will either inherit under the rules of      intestacy (as the nearest living relative or one of them) or if applicable      by earlier valid Will.
3. DON’T….proceed with your claim unless you are satisfied you can      make out a case that:

(a)    The person making the Will (called the “testator”) didn’t or could not have understood/known the Will contents and/or what he or she was doing at the time;

(b)   He or she was subject to pressure to make the Will a certain way (called “undue influence”);

(c)    That the Will was forged or otherwise not properly executed (by the testator signing in front of two witnesses who each signed in front of each other).

4. DO… enter a Caveat to stop the Grant of Probate but immediately      afterwards please also take legal advice.
5. DO…investigate the formation of the Will and ask for the Solicitors      will files….you are entitled to do so by a case called Larke v Nugus.
6. DO…(if you consider they might be useful to your case) apply for      the deceased’s medical records (you may have a right to them independently      of the Will Executor who is sometimes required to consent as well under      the Access to Health Records Act at section 3(1)(f)).
7. DO….draft a letter of claim and send it to the Will Executor      setting out why you consider the Will is invalid asking for the disclosure      of papers within their power and control to include all earlier Wills and      Codicils and the Solicitors’ will file. DON’T ….make up any of the facts      you say support your claim. In general the more honest you are the more      credible will be your case.
8. DO…AND WE WOULD SAY THIS      (!!) consult with us or instruct      us to help you. In general, we can act on a no win no fee basis in every      case.

A mediator is a professional dispute resolver. He charges a fee to try and help disputing parties to amicably settle the disagreement between them. How is this relevant to a Will dispute/Will contest/Will claim? Surely you are paying the Solicitor to bring court proceedings to do just that?

The answer is this. It is incredibly expensive and risky to bring civil court proceedings in England and Wales given in general terms if you lose them, you could end up paying your own costs and the winning party his costs as well. On a no win no fee arrangement, you wouldn’t pay your Solicitor if you lost and you may have the benefit of ATE insurance (so called “After the Event”) insurance which would cover you so why not have your day in court?!

However, it is possible given the nature of a will contest claim that the court could consider the estate should pay the costs. In that instance your share of the estate could be considerably reduced by your own costs (and those of the other party).

Worse than this, if you haven’t considered mediation (or other so called dispute resolution activities) then regardless of the fact you have won, it may be found by the court you have behaved unreasonably (notwithstanding the strength of your case) and you may not be paid your costs at all (in which case they are likely to come from your share of the estate).

A recent case in the Court of Appeal highlighted this; Rolf v De Guerin 2011 EWCA civ 78 (http://www.bailii.org/ew/cases/EWCA/Civ/2011/78.html)

The facts are not relevant save the Defendant won at trial. However he refused to take part in mediation as a result of which he did not recover his costs from the losing party. Rolf shows us that courts will expect litigants or potential litigants to seriously consider and engage in mediation or other forms of dispute resolution. Woo betide those who ignore this and proceed into court proceedings regardless.