2. Litigation about Wills, Trusts and
Probate
Tuesday 6 November 2012

3. Litigation about Wills, Trusts and
Probate
Chris Greenwell
Scott McKittrick
Claire Herbert
Natalie Howes

4. what we want to tell you about
• The kinds of dispute which arise out of the
preparation of Wills, Trusts and Probate
• Consequences of the failure to give
enough thought to them when preparing
the Will
• Consequences of the failure to make
provision for the right people
• How these problems are put right after the
event

5. these issues will be divided into:
• The right steps before death
• Common problems after death
• Starting a claim
• Miscellaneous types of case that happen

6. some overarching rules about
acting on behalf of Estates
• Don’t write letters that might look bad later
• If you have a case, get on with it
• Advise objectively; sometimes the ‘hard word’
has to be delivered
• Properly drafted Wills (or having Wills at all)
avoid claims
• Keep a clear record of whatever you tell or
discuss with your client or their family
• Plan in advance e.g. deal with affairs while
client/testator is of sound mind

7. when your client wants a Will
• Clearly establish assets and liabilities
• Find out clearly what the testator wants
• Make sure the testator understands what
he wants
• Keep clear notes of what you discuss
especially ‘off the wall’ plans
• Make sure you get your client to get on
with it, especially if the client is
approaching the end
• Go to the solicitor with your client

8. if you do prepare Wills have a
checklist to make sure they are valid
• Comply with Section 9 of the Wills Act
1837 - signatures, witnesses, dates
• Make sure witnesses are not beneficiaries
or spouses of beneficiaries
• Make sure the testator has capacity
• Rectifying (putting mistakes in Wills right
later) is expensive and likely to give rise to
negligence claims

9. after death; challenging the Will
• Failure to properly execute the Will
• Intestacy
• Prior Will prevails
• Undue influence, fraud or mistake
• Want of testamentary capacity
• Want of knowledge or approval; the court
to be satisfied that the testator knew and
approved the contents of his Will

10. failure to observe formalities
• Will must be written and signed
• Testator must plainly have intended to
make his Will
• It must be witnessed by two witnesses
together and signed or acknowledged by
them in one another’s presence

11. undue influence
• Coercion of any variety; deprivation of freewill
• Presumed in some relationships;
solicitor/client, doctor/patient,
priest/parishioner
• Fraud
• Lying to procure a disposition
• Forgery of a Will (Harold Shipman for
example)
• Impersonation of testator

12. want of testamentary capacity
•Even after all this time, the test goes back to 1870
(Banks -v- Goodfellow)
“It is essential that a testator shall understand the
nature of his act and its effects; shall understand the
extent of the property of which he is disposing; shall
be able to comprehend and appreciate the claims to
which he ought to give effect and with a view to the
latter object, that no disorder of the mind shall poison
in affections, pervert his sense of right, or prevent the
exercise of his natural faculties, that no insane
delusion shall influence his will in disposing of his
property and bring about a disposal of it which if his
mind had been sound, would not have been made”

13. want of testamentary capacity
• Some examples of what does not
necessarily affect capacity would be:-
• Drunkenness
• Deafness and dumbness; and
• Loss of faculties after the making of the
Will

14. want of knowledge and approval
• This is where those who have ‘suffered’ try
and establish that there are suspicious
circumstances which ‘excite the suspicion
of the court’
• Fertile ground for claims are:-
• Person helping to get the Will executed
benefits
• Part of the Will is covered up
• Person benefiting fails to give evidence as
to execution

15. want of knowledge and approval
• There is misuse of a foreign language
• Deaf and dumbness
• Witnesses corralled by the principal
beneficiary
• Any one dealing with the Will preparation
has to exercise the ‘golden but tactless
rule’ which translated into plain English
means ‘I am not sure you are all there so I
am going to get a doctor to check’

16. you are not happy with the Will
or issues in the Estate?
• What do you do?
• Citations
• To take out Probate. This is to force proper
administration of the Will (for example in an
intermeddled estate (Devastavit)
• A citation to force the taking of a Grant if
someone should be administering an
estate but will not

17. you are not happy with the Will
or issues in the Estate?
• To propound the Will or prove it in solemn
form - for example if the Will is suspicious
the executor or beneficiary is forced to
prove the validity of the Will
• Citations are rare in practice. They are
slow and expensive and they in effect
attempt to force the taking of action by
people who have already proved unreliable

18. you are not happy with the Will
or issues in the Estate?
• The more likely practical step is:-
• Subpoena to delivery up Will
• Subpoena parties likely to know about
the Will or its whereabouts; or
• Proceeding by caveat and or litigation
• Investigating execution of the Will ‘Larke
-v- Nugus’

19. caveats
• These are used to prevent a party taking
out a Grant of Probate or letters of
administration (in intestacy)
• They effectively block the estate until your
issues are resolved or litigated
• If agreement is not reached in practice
either:
• The aggrieved party backs out of his claim
and withdraws the caveat; or
• The aggrieved party gets on with the
argument about the estate

20. caveats
• Caveats can also be used to try and
establish a contrary interest for example,
the right to be administrator under an
earlier Will or a claim of intestacy if the Will
is invalid or if a Will cannot be found

21. after the Grant
• A common argument is the
Trustee/Executor is not doing his job
properly. Putting this right is a last resort. It
is costly. The remedies (broadly in order of
cost are)
• Section 50 Administration of Justice Act -
Application to replace Trustee
• Administration Action - to appoint a
completely independent administrator
(similar to a court appointed receiver or
insolvency practitioner) to administer the
estate

22. after the Grant
• To appoint a Judicial Trustee. A Trustee
appointed by the court.
• Application for ‘inventory and account’, to
demand the Trustee accounts for what he
has done with the estate’s money

23. revocation and rectification
• Torn up Wills
• Crossed out Wills; interlination
• Rectification - used to put a mistake or
fraud in a Will correct, or rectify failure of
the Will draftsman to properly reflect the
testator’s intent
• Construction claims - claims, often
conflicting with rectification claims for
construction of the words used in a Will.

24. costs
• Legal costs are in 80% of claims the
‘elephant in the room’
• There are a number of broad rules to
remember in Probate:-
• Costs are not always paid by the
deceased’s estate
• If executors fend off a claim they will
usually get their costs paid by the estate
• Any losing party (including executors) may
have to pay costs personally even though
they are not arguing about their own
money. This risk needs to be insured

25. costs
• Alleging fraud or undue influence is done
at your peril; if you do so without good
cause your exposure to costs is vastly
increased
• Broadly speaking, it is always better to
settle than fight by either:-
• Mediation; or
• Making an offer intended to shift costs risks

26. costs
• ‘No win, no fee’ (Conditional Fee) cases
and insuring the risk of losing are always
an option in contentious probate or
inheritance act claims
• Claims should always be started by an
informal Contentious Probate Protocol and
there are cost sanctions for failing to do so

27. Inheritance Claims (Inheritance
Provision for Family Independents) Act 1975
(IHA)
• A testator needs to understand the claims
to which he ought to give effect (as the
Judge said in 1870 in Banks -v-
Goodfellow)
• This Act is how the law is used to provide
for people who in simple terms, in
conscience, should have benefited but did
not from the testator’s estate

28. advance planning
• A statement accompanies the Will which sets
out (with good reason) why provision is not
being made or is limited
• Consider making reduced provision in the Will
which may later render IHA claims
commercially difficult to bring
• Mutual Wills which do not make proper
provision are relatively easy to override
• Wills should not contain uncertain provisions
for example ‘I leave x such amount as the
court would award under IHA’

29. who is eligible?
• Domiciled in England and Wales
• Claim to brought within six months of Probate
• Spouse
• Former spouse who has not remarried
• A cohabitee
• A child or person treated by the deceased as
a child (NB adult children must show
dependency)
• Any person who immediately before the death
was wholly or partially maintained by the
deceased

30. what are they eligible for?
• For spouses; reasonable financial
provision irrespective of need
• For everyone else; the provision needed
for their maintenance
• The court can order maintenance
payments, lump sums, property transfers,
property orders as it sees fit and
variations of existing orders

31. how does the court decide
what is reasonable
• Likely foreseeable financial needs and
resources
• Likely claims of any other party
• The needs of the beneficiaries
• The obligations of the deceased to the
other parties
• The amount in the Estate

32. how does the court decide
what is reasonable
• Any disabilities of the applicant or
beneficiaries in the estate
• Any other matter including conduct which
the court considers relevant
• In spouse cases:
• Age and duration of marriage
• Contributions made to the welfare of the
family

33. no shortcuts in assessing
a case
• Establish eligibility
• Consider by reference to each of the
factors where the reasonable financial
provision has been made
• If it has not been made what provision
should be made?
• We do this in a checklist
• The court gives weight to certain special
factors

34. no shortcuts in assessing
a case
• Promises made by the deceased
• Statements made about provision by the
deceased
• Conduct. You think this is likely to be
salacious but in practice it is very dull
• Adult children cause particular difficulties
• Spouses generally have much higher
reasonable financial provision needs

35. miscellaneous cases
• Enforceable promises to leave property by
Will
• Estoppel. A promise made to a beneficiary
by a deceased reneged upon in the Will
• Murderers - cannot inherit. However other
killers can apply to benefit within three
months of death
• Insolvent estates (note - freezing of assets
in attempt to dissipation)
• Intestacy
• Professional negligence ‘White -v- Jones’

36. questions