Increase in legacies in Wills, increase in legacy disputes?
Indeed 2018 saw £3 billion donated to charity in wills – an increase of 50 per cent since 2008. Yet interestingly (according to the Telegraph) smaller charities are said to be benefiting more than the larger better known organisations. This could be as a consequence of the negative publicity suffered by charities such as Oxfam following the safeguarding scandal, or Save the Children who faced multiple allegations of discrimination and harassment of staff in 2018 (indeed the latter was recently reported to have seen income drop by a quarter at least in part as a result of these allegations).
Or perhaps it is due to people wanting to leave money to charities with whom they have a personal or local connection and a perception that gifts to smaller charities will make more of a difference.
Regardless of the size of charity that benefits from a will, the importance of treading carefully in the event of a will dispute cannot be emphasised enough. Whilst the principle of testamentary freedom is well established in English law, legacy disputes are ever increasing and charities often feel the force of disgruntled family members seeking to challenge a will, particularly on the grounds that it is invalid or that the family member was financially dependent on the deceased and adequate financial provision has not been made for them.
The validity of a will can be challenged on any of the following grounds:
1. That it has not been correctly executed (it must be in writing and signed by the person making the Will in the presence of two witnesses and then be signed by the two witnesses, in the presence of the person making the will);
2. That the deceased lacked the necessary mental capacity;
3. That the deceased did not have knowledge and approval of the contents of a Will;
4. That the deceased was subject to undue influence;
5. Or that the Will is forged/fraudulent.
The Inheritance (Provision for Family and Dependants Act) 1975 (the 1975 Act) enables certain categories of persons to make a claim against an estate provided they can show that they were financially dependent on the deceased and that the deceased did not make adequate provision for them in their Will. Any claim under the 1975 Act must be made within six months of the issue of the Grant of Probate.
The most high profile recent 1975 Act claim involving a charity is the case of Illot v The Blue Cross and others  UKSC 17 where the deceased left the majority of her net estate (worth £486,000) to three charities and made no provision for her only daughter who then contested the will despite having been estranged from her mother for over 30 years. The case went all the way to the Supreme Court where the final decision found in favour of the charities yet reinstated a modest award to the daughter of £50,000 made at first instance. The Supreme Court emphasised that the charities were the chosen beneficiaries of the deceased thus confirming that testamentary freedom remains a key principle of English law.
The Charity Commission guidance in this area for trustees is clear – trustees have a duty to act in the best interests of their charity and have a duty to protect, and where necessary, to recover, assets belonging to the charity. The decision whether or not to initiate or defend a legal action over a will must therefore only be made in the best interests of the charity yet needs to take account of the risks and consequences that any legal action could bring such as legal costs and potential reputational damage. The Charity Commission also expects trustees to consider legal action only after they have explored and, where appropriate, ruled out any other ways of resolving the issue in dispute, for example alternative dispute resolution including mediation.
Leaving money to a charity is something that any testator is free to do and charitable giving in a will is clearly gaining traction which is encouraging for the charity sector. Charitable giving should be respected but legacy disputes frequently arise and are unfortunately unavoidable. It is crucial therefore that charities give careful thought as to how to approach these matters including consideration of the following:
1. Early legal advice is always recommended and will ensure the charity is best placed to see off weak claims at the earliest possible opportunity at minimum cost.
2. Early collaboration with other charities benefiting under a will can also be useful (but always be mindful of a potential conflict).
3. Appropriate delegated authorities should be put in place by the Trustees to those responsible for legacy management to ensure that they are able to deal appropriately with any situation that might arise.
4. Information is key therefore requesting a copy of the deceased’s will and related information is a likely first step but all written correspondence must be handled with care.
5. Always be mindful of negative PR implications and ensure that this aspect is carefully managed in parallel with any wider consideration of a potential dispute.
Legacy funds are a key source of funds for charities, big or small, and knowledge is the first step in seeking to ensure that they are best protected.
For further information on the issues raised in this blog post, please contact a member of our team.
Alzheimer’s disease, the most common form of dementia, has been in the spotlight recently given a recent scientific breakthrough with the US approving the first new Alzheimer’s drug in 20 years. Light has also been shed on dementia and assessing testamentary capacity in the recent case of Hughes v Pritchard  EWHC 1580 Ch. In this case, Mr Hughes, who suffered from moderately severe dementia was nevertheless deemed to have capacity at the time of amending his will by his GP, a view supported by a joint medical expert later instructed in the case. Despite this, his will was overturned by the judge on the basis that he did not have the requisite capacity to make the changes to his previous will, which were much more significant than the medical professionals, and indeed Mr Hughes, had appreciated.
Matthew & Others v Sedman & Others  UKSC 19
The Supreme Court recently handed down a judgment dealing with time limits in a “midnight deadline” case. The claim was brought by new trustees and beneficiaries of a will trust against the former professional trustees. The claim involved allegations of negligence against the former trustees, along with breach of trust and breach of contract.
Financial abuse of older and vulnerable adults is sadly becoming more prevalent
My previous blog examined whether Kenny Goss, the ex-partner of George Michael, may be entitled to a provision from the late singer’s estate, notwithstanding the fact that their relationship had broken down in 2009 (seven years prior to Mr Michael’s death). It was reported at the time that Mr Goss was seeking an award of £15,000 per month on the basis that Mr Michael had been financially maintaining Mr Goss at the time of his death. Pursuant to the Inheritance (Provision for Family and Dependants) Act 1975, Mr Goss made an application for reasonable financial provision from Mr Michael’s estate because he had not been left anything in the singer’s will.
In recent years the courts have seen a significant number of claims under the 1975 Act bought by adult children. This week it has been widely reported that the two adult daughters of Tony Shearer, a high profile banker and finance governor of a well-known public school, have failed in their attempt to bring a claim against their late father’s £2.2 million estate. Mr Shearer made no provision in his estate for his daughters leaving the majority of his wealth to his second wife.
Examining the impact of Sofer v Swiss Independent Trustees SA on practitioners in England and Wales.
This article was first published by STEP, December 2020: Katherine Pymont, 'Moments of Truth', Trust Quarterly Review (Vol18 Iss4), pp.36-41
Two recent decisions relating to forged wills have highlighted what evidence will be sufficient for a court to make a finding of forgery.
This quarterly contentious trust and probate litigation update provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period October 2020 - December 2020.
Beneficiaries often have questions and concerns over how the estate of a loved one is being administered but are sometimes kept in the dark by personal representatives (PRs). Under section 25(b) of the Administration of Estates Act 1925 (AEA 1925) PRs can be required by the court to provide, on oath, a full inventory of the estate and an account of what steps they have taken to administer an estate.
The High Court has recently given judgment in the case of Knipe v The British Racing Drivers’ Motor Sport Charity and Ors  EWHC 3295 (Ch), a summary judgment application concerning the construction of a will of a deceased racing driver, Mr Barrie Williams, who had sought to make several bequests to charity but the names of the organisations had not been correctly recorded.
One of the questions we are often asked is whether an individual’s will can be amended after their death if it doesn’t reflect their intentions. This is sometimes possible under a process known as rectification, although the circumstances in which rectification is available are limited. A claim for rectification was recently considered by the court at the end of 2020 in the case of Barrett v Hammond & others.
It has been alleged that the ex-partner of George Michael, Kenny Goss, may be considering issuing a claim against the singer’s estate. Goss was excluded from the singer’s Will but purportedly claims he is entitled to a monthly allowance of £15,000 as the singer provided this monthly allowance to him before their relationship broke down in 2009.
Before the Family Law Reform Act 1969 (“the 1969 Act”) came into force on 1 September 1970, the common law rules of construction that a child is legitimate only if the child was born or conceived in wedlock applied when dealing with trust deeds or wills. The 1969 Act is not retrospective so difficulties may still arise in relation to trust deeds or wills settled/executed prior to that time.
This blog focuses on two practical considerations that should be borne in mind when dealing with an estate where there are any suspicions that the value of the assets when realised may be insufficient to meet all debts and liabilities in full.
It is not uncommon in claims involving trusts and estates for one or more of the parties to be a child or other protected party. This is particularly true of claims under the Inheritance (Provision for Family and Dependants) Act 1975 and in cases involving trusts with minor beneficiaries. The procedures for litigation by or on behalf of a protected party are covered by Part 21 of the Civil Procedure Rules.
This article was first published by EPrivateClient on the 18th August 2020
This quarterly contentious trust and probate litigation update provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period April 2020 - June 2020.
Delay is a common complaint in professional negligence claims against solicitors in the context of wills and probate. For example, If a client is in poor health or advanced old age and wants to create or update their will, they might instruct a solicitor to assist with this. If the client dies before the new will can be prepared and/or executed, the beneficiaries who would have inherited, had the will been put in place before the client’s death, may look to bring a professional negligence claim against the solicitor if there has been undue delay by the solicitor in preparing the will.
Solicitors in any field of practice are under a duty to exercise reasonable care and skill when acting for clients. In wills and probate practice, that duty also extends to the beneficiaries of a testator. If the solicitor has acted in breach of that duty, which causes loss to the client or their beneficiaries, this could form the basis for a professional negligence claim against the solicitor.
Most people would agree that if a person is convicted of unlawfully killing another person, it would be wrong for them to be allowed to benefit from their crime. For example, if a husband kills his wife and is the main beneficiary of his wife’s valuable life insurance policy, or is the main beneficiary of her estate under a will she has made, it would generally be unpalatable for the husband to be allowed to benefit from the policy or the estate. This principle is unheld in law by what is known as ‘the forfeiture rule’.
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