Increase in legacies in Wills, increase in legacy disputes?

Part 4 - Will Construction

18 July 2019

Part 4 of our charitable legacy disputes series looks at Will construction claims.

The law

A will construction claim arises where there is a dispute concerning the wording, or meaning of wording, in a will.

Case study

An interesting will construction case involving a charity is that of Vucicevic v Aleksic [2017] EWHC 2335 where the High Court ruled on the construction of a handwritten will.

The testator, Mr Veljiko Aleksic was born in Montenegro on 19 March 1923, arriving in England shortly after the Second World War where he died on 24 October 2014. Mr Aleksic had houses in London and Cardiff and land in Montenegro (co-owned with two of his brothers). His will was undated and contained no attestation clause (one of the two attesting witnesses consequently made an affadivit attesting due execution to have taken place towards the end of 2012). The will made no express provision for the appointment of an executor but appointed a senior bishop of the Serbian Orthodox Church to “be in charge”. The Probate Registry declined to accept that the bishop had been appointed as an executor. There was no previous will. 

The will contained numerous spelling errors, grammatical mistakes and misplaced punctuation.   Mr Justice Matthews said “Bad English can still make a good will, as long as the testator's meaning can be understood”. He relied on multiple sources of evidence, including a forensic document examiner and an expert in the law of Montenegro, to make sense of ambiguous words phrases and establish what the testator intended.

The deceased included a legacy of £10,000 in the Will to “Brit. Cancer Research”. In the absence of any such organisation and no reported connection with a UK cancer charity, an application was made to the Attorney General’s Office for the proceeds to be disposed of under the Royal Sign Manual. The Royal Sign Manual literally means signature of the monarch (who delegated her power to dispose of charitable gifts to the Attorney General in 1986) and applies where a gift has been made to charity but the identity of that charity is unclear. The legacy was subsequently divided between a selection of British cancer related research charities.

 

Top tips for charities

  • Encourage supporters to instruct qualified professionals to prepare their wills.
  • The Royal Sign Manual cannot be used to resolve a dispute over the validity or construction of a Will.

Latest blogs & news

Actor Terry Jones’ children challenge his Will - but does suffering from dementia mean you can’t make a valid Will?

Several stories have recently been published about the ‘legal battle’ commenced in the High Court relating to the estate of actor Terry Jones, who was well known and loved for his role in Monty Python and who died in January 2020. His adult children from his first marriage have reportedly commenced proceedings against their father’s estate and his second wife Anna Söderström (who is thought to be the main beneficiary of the estate), claiming that the Will their father made in 2016 is invalid because he lacked capacity when he made it. As a matter of law, a Will made by someone who lacks the required mental capacity at the time they made the Will is not valid. 
 

 

Why the date of death matters for creditors of insolvent estates

Death does not release an individual from their debts and liabilities, nor does it allow transactions made to loved ones to escape challenge. This is so regardless of whether the transactions were made with the intention to defraud creditors.

Spotlight on dementia: can you challenge a will despite the views of medical experts?

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 [2021] 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.

When does the clock start ticking on trustees’ negligence?

Matthew & Others v Sedman & Others [2021] 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.

Looking out for financial abuse of the vulnerable

 Financial abuse of older and vulnerable adults is sadly becoming more prevalent

You gotta’ have faith…in ADR

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.

Inheritance claims by adult children

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.

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This article was first published by STEP, December 2020: Katherine Pymont, 'Moments of Truth', Trust Quarterly Review (Vol18 Iss4), pp.36-41

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Two recent decisions relating to forged wills have highlighted what evidence will be sufficient for a court to make a finding of forgery.

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Beneficiaries in the dark: what can you do to obtain the information you need?

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. 

Leaving a legacy to charity: avoiding a will construction claim

The High Court has recently given judgment in the case of Knipe v The British Racing Drivers’ Motor Sport Charity and Ors [2020] 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.

When can a Will be rectified? Barrett v Hammond (2020)

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.

Did George Michael have the freedom to exclude his ex-partner from his will?

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.

Highly publicised matters arising in relation to the administration of the late Steve Bing’s estate in the US give rise to some interesting legal issues

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.

Think twice: might the estate be insolvent?

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.

Glover v Barker – Cost Orders against Litigation Friends

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. 

How to challenge a will

This article was first published by EPrivateClient on the 18th August 2020

Contentious Trust and Probate Quarterly Round-Up: Q2 2020

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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.

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