In 2011, research commissioned by the well-known charity Stonewall concluded that people over 55 who were in a same sex relationship were less likely to see biological family members on a regular basis. Over half of the people surveyed felt that their sexual orientation had, or would have, a negative effect on getting older and would make life more complicated.
In considering that research, it is perhaps unsurprising that we are dealing with an increasing number of enquiries and cases where the family of a deceased person are challenging the validity of the will because they left a significant proportion of their estate to their same sex partner and their family either did not know (or did not approve) of the deceased’s relationship.
A separate survey of 2,000 people conducted by Macmillan Cancer Support found that 42% of people over 55 had not made a will. In those circumstances, the deceased’s estate would pass under the rules of intestacy and where there is no surviving spouse or civil partner, the estate would pass to other surviving members of the family, perhaps leaving the surviving partner with no financial maintenance or provision. It is also possible that if the deceased did not want to upset their family, they may have left a will which excluded their partner. If that person was financially dependent on the deceased, this could have devastating consequences.
These cases can be difficult because they deal with a range of sensitive and personal issues, not only dealing with the death of a loved one but, in addition, having personal circumstances of a person’s relationship potentially scrutinised and analysed.
Validity challenges may arise where the deceased has written a will which includes their partner, perhaps to the detriment of beneficiaries who were previously included in wills. These beneficiaries may not have been aware of the deceased’s relationship, either because they were not close or because the deceased did not inform them of that relationship. This may lead to allegations that the will is invalid due to coercion or undue influence by the partner over the deceased. Alternatively, there may be an allegation that the deceased could not have known or approved the contents of their will.
Regardless of the nature of the deceased’s relationship, in the UK everyone is entitled to dispose of their estate as they wish (known as testamentary freedom). Although the deceased’s choice may be unpopular, this does not make the will invalid.
In order to prove that the deceased was unduly influenced into changing their will, it is necessary to show that the influence was such that it overpowered the will of the deceased and that they were coerced into changing their will; it needs to be more than just persuasion. This can be very difficult to prove and there remain only a handful of successful cases. The court will look for evidence that the deceased would not have made the gifts without being subject to influence. In order to demonstrate that these were the wishes of the deceased, the beneficiary is likely to need to produce evidence that there was a loving relationship and the deceased would have wanted to leave the gift to them.
A deceased also has to know and approve the contents of their will and so, if the deceased leaves their entire estate to a partner who was not previously named in a will, there will need to be evidence that they knew and approved what the implications of that gift may be. If the will has been prepared by a solicitor, this is likely to be easier because the solicitor should have recorded the deceased’s reasons for wanting to dispose of their estate in a particular way. As per the above however, people over 55 may be reluctant to approach a solicitor and discuss their personal information. This may mean that the will is homemade and it will become more difficult to produce evidence from the deceased that this was their wish.
Inheritance (provision for family and dependants) Act 1975
Under this act, if you fall within a certain category of potential claimants, and you can show that the deceased’s will has not made reasonable financial provision for you, then you may be able to make a claim under the act. The court will consider a number of circumstances to come to their decision, and they have a wide discretion to make orders to enable a reasonable financial provision to be made. Under section 2 of the act, civil partners are entitled to bring a claim. However, what if you were not in a civil partnership with the deceased?
The act also states that any person, who immediately before the death of the deceased was being maintained, either wholly or partly by the deceased, may also bring a claim. This means that if you were in a relationship with the deceased and were being maintained by them, you may be entitled to make a claim against the estate. It would then take careful consideration of the applicant’s relationship and the extent to which they were being maintained, in order to fully consider what they may be able to seek by way of maintenance. Cohabitees may also have a potential claim under the 1975 Act if they have not been left reasonable financial provision
Both of the above claims will require examination of the facts and supporting evidence.
If the family of the deceased are accepting and aware of the relationship, it may be easier to settle these types of matters without having to issue a claim however, in circumstances where the other beneficiary’s entitlement will be reduced by any claim, and particularly if the family are not aware of the relationship, it is possible that any such claim will be contentious.
It is therefore important to seek advice as soon as possible if you consider that you may have a claim, or be faced with a claim, following the deceased’s death.
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.
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.
The visibility of the “B” in our LGBTQ+ umbrella is marked every year on 23 September. At Kingsley Napley, we are proud to have bisexual members of our LGBTQ+ and Allies Network and strive for everyone to feel like they can be themselves and bring their whole selves to work. Outside KN, and in this year alone, Robin has come out as bisexual in the new Batman comic, more awareness has been raised about bisexuality with celebrities, such as Megan Fox, Lily Cole, speaking out and there is more representation of bisexual people in mainstream shows, such as Sex Education, Brooklyn Nine-Nine.
Trans adults with full decision-making capacity have the freedom to secure hormonal and surgical interventions to align their bodies with the physical attributes typical of the gender with which they identify (a process known as “transitioning”). However, for those who lack capacity, the involvement of others who are responsible for making decisions on their behalf is required, and the position can be complex as a result. This blog explores the approach to making decisions relating to transitioning on behalf of protected trans people, applying the best interests test and guidance from case law, and discussing the practicalities for decision-makers.
When I told some of my friends I was writing a piece about drag activism, their reaction was almost unanimous…
"Oh, but, is there much to say?"
That's when I realised that drag queens, for many, are more synonymous with big hair and lip-syncing pop hits rather than political consciousness and activism. You can certainly understand the reason for this - we have been totally spoiled in recent years with the explosion of Ru Paul’s Drag Race around the world - the make-up, talents and confidence being a feast for the eyes (and the soul). But we cannot minimise the political importance of Mama Ru’s creation. Who could forget numbers such as “Shady Politics”; the discussions of gay conversion therapy while applying make-up; and Bob the Drag Queen describing his arrest during a 2011 marriage equality protest? Not to mention Nancy Pelosi sashaying into the All Stars season…
Coming out is an extremely personal journey and will be unique to each person. It takes a lot of courage to come out and a person may have to repeatedly do this in their personal and professional lives. Statistics show that 46% of people who identify as lesbian, gay and bisexual and 47% of people who identify as trans feel comfortable to discuss their orientation or gender identity.
How can you put the spotlight on intersectionality to remind others that, even within the LGBTQ+ community, not everyone is treated equal?
Are you proud of who you are, your journey and the person that you’ve become? Do you truly wear your heart on your sleeve? For some, being open and honest about who we are (which includes our gender identity or sexuality) does not come easily and can be extremely hard. It can be even tougher at work, and for those that hide their true self, the energy expenditure is endless. That survival cost of energy makes you less productive, or even worse still, it has a detrimental impact on your mental and physical health.
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.
I am a trans woman who has recently embarked on her transition. Having only taken my first steps on this journey, I am acutely aware when writing this that I have much to learn about myself, about being trans, and about the diverse LGBTQ+ family that I now find myself part of. However, there is one theme that I feel is important to discuss as we celebrate Pride in 2021.
Three years on, the UK Government is still ‘’dragging its feet’’ about banning gay conversion therapy.
Following on from my colleague Sameena Munir’s blog ‘’pray the gay away: cull conversion therapy worldwide’’, the issue of gay conversion therapy dominates contemporary conversations surrounding LGBT politics and legislation in the UK, but the Government has failed to deliver on its promise to ban it.
"They will say I’m pushing an agenda. But the truth is, I am.” - The rise of queer artists and the importance of visibility
For two weeks during Pride month, Kingsley Napley are publishing a series of blogs to celebrate Pride and highlight LGBTQ+ issues from home and abroad.
It’s been 9 years since R&B artist Frank Ocean headed off rumours about his particular pronoun usage in the album Channel Orange by posting on Tumblr that his first love had been a man. Since then, the momentum for the openness and success of queer artists has continued to gather pace, and LGBTQ+ representation in the arts and mainstream media is as wide as it has ever been. This rise has however raised important questions about pigeonholing queer artists, and perhaps most interestingly whether they must always shoulder the responsibility of ‘pushing the agenda’.
In February this year, I attended a virtual talk held by the InterLaw Diversity Forum for LGBT+ History Month. The speakers featured individuals working in the legal sector and each discussed their experience of coming out as trans or non-binary at work. It feels an apt lesson given this year’s Pride theme: Visibility, Unity and Equality.
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.
In January 2020, I was fortunate enough to give birth to a beautiful, healthy baby boy. As far as I know, I am the first partner at Kingsley Napley (although certainly not the first employee) who has a baby who is lucky enough to have two mums. News of my pregnancy was met with overwhelming support from my colleagues. That support continues to this very day, and my wife and I remain truly grateful for the kindness that has been shown to us. However, since falling pregnant I have learnt that not all workplaces are as supportive to same-sex parents as mine. The concept of two mums or two dads starting a family is something that some people still struggle to get their heads around. So this year, for our KN Pride blog series, I have decided to explain the questions, that speaking from my own experience, it is not helpful to say to same-sex parents.
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.