Proving Will Fraud or Forgery: Is There Evidence?
This article was first published by FT Adviser on 13 May 2022
According to Age UK, approximately 1.4mn older people in the UK consider themselves to be lonely and around half a million people aged over 65 experience some form of abuse or neglect. This might include controlling behaviour, coercion or isolating a person from their friends or loved ones. For many, the pandemic has exacerbated the problem.
Although loneliness and social isolation often go hand-in-hand, someone does not actually have to be socially isolated to be lonely. Sadly, older people who experience loneliness are more likely to develop Alzheimer’s disease and mental capacity issues, making them even more vulnerable.
There is a clear link between loneliness and social isolation within the elderly community and the fact this exposes them to financial abuse.
Section 42(3) of the Care Act 2014 defines abuse as including financial abuse, and for that purpose financial abuse includes:
Having money or other property stolen;
In 2020-21, almost 680,000 lasting power of attorneys were registered. While the majority of those attorneys will act in their donor’s best interest, it is not always the case. We increasingly receive complaints that an attorney has made decisions in their own interests, rather than in the best interests of the donor, or that the attorney has obtained access to the donor’s assets and used them for their own benefit.
The difficulty often is that financial abuse may only come to light once that person has passed away. In those circumstances, it can be difficult to obtain the necessary evidence or information.
As such, it is incumbent on all of us as financial or legal advisers, trustees and/or executors to be vigilant to the signs of financial abuse. Indeed, the same can be said for our loved ones if we have concerns or suspicions that a friend, relative, carer or even professional adviser might be taking advantage of them.
Red flags might include:
It is not always easy to notice the signs of financial abuse because it typically happens behind closed doors. The risk and difficulties are compounded when a person lacks capacity.
However it is our responsibility to act on any suspicions we may have, to try and engage with the potentially vulnerable person and attempt to talk to them about what is happening.
It may also be sensible to record any concerns contemporaneously in writing or even engineer the introduction of a trusted and independent contact to manage financial decisions, such as an accountant or wealth manager, to protect the individual in question.
Loneliness can have many adverse consequences. We need to do more to help ensure that financial abuse is not one of them.
Laura Phillips is a Senior Associate in the Kingsley Napley's Dispute Resolution team, specialising in Wills, Trusts and Inheritance Disputes. Laura’s experience includes challenging wills on the basis of lack of testamentary capacity, want of knowledge and approval, fraud, forgery and undue influence, and includes dealing with multi-jurisdiction estates with a multi-cultural aspect.
Mental Health Awareness Week, with its focus this year on the theme of loneliness, is a timely reminder of our duty to protect loved ones and elderly clients who might be vulnerable to financial abuse and undue influence.
The death of a loved one is an incredibly sad and difficult time for any family, and in the vast majority of cases those closest to the deceased are able to arrange an appropriate “send-off” which gives everyone the opportunity to pay their respects and say goodbye. Unfortunately however, there may be situations where the relevant parties cannot agree on the funeral arrangements, or what should happen to the deceased’s body. This blog considers who is legally responsible for deciding what happens to the body and how the Court has approached disputes in recent cases.
When a family member or loved one dies, sometimes the terms of their will, if they made one during their lifetime, can come as a surprise to those who survive them. For example the will might include unexpected beneficiaries, or certain beneficiaries might receive a greater or lesser share of the estate than others. Under the laws of England and Wales, a person has the freedom to leave their estate to whoever they choose and there is no legal obligation to provide for any particular family member or other individual. Therefore, whilst family members or individuals might regard the terms of the will as unfair or unexpected, the law will generally uphold the wishes of a testator set out in their will, if it has been validly made.
The Court of Appeal has recently handed down its judgment in the case of Hirachand v Hirachand, concerning an appeal against an order made in May 2020 in proceedings brought by Sheila Hirachand for provision from the estate of Navinchandra Hirachand, her late father, under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”).
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.
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.
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.
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