Recent tribunal cases involving Covid-19
The national press has reported widely on the case of Ben Field, the 28 year old church warden who was convicted on Friday of killing retired teacher and university lecturer Peter Farquhar in an effort to inherit his estate after he died.
Field befriended Farquhar and then set about convincing him that he was losing his mind using a form of psychological manipulation know as gaslighting. Tom Rawstorne for The Daily Mail said “A few months before his death, Peter Farquhar spoke to his parish priest about fears that had been plaguing him day and night, By then the 69-year-old’s health had deteriorated to the stage that he was at time rambling, incoherent and suffering from hallucinations. He particularly dreaded the mornings when he would wake to find himself covered in bruises or with his prized possessions swept from the shelves with no memory of what had happened”. The Mirror reported that Field is said to have “had a hand-written “client list” of 100 potential future victims. The Guardian reported that “jurors were told of Field’s elaborate project of first befriending the individuals, who were vulnerable and lonely, then defrauding them by allowing them to think he was in a loving relationship with them, and encouraging them to change their will to benefit him. He then began a devastating campaign of physical and mental torture”.
The BBC reported that when Field was arrested he said“I think I will get away with most of it”. Fortunately he has not but whilst Field’s behaviour may be in the extreme, cases such as these where individuals seek to take advantage of elderly or vulnerable people in an effort to benefit from their estates after death is sadly not uncommon.
In England & Wales, you have the right to leave your estate to whoever you choose but a surprise beneficiary or unexpectedly large gift may cause alarm bells to ring for those left behind. A Will can be invalidated for any one of the following reasons:
In the Field case, putting to one side for now the criminal conduct, his reported behaviour could almost certainly give rise to a potential undue influence claim. These claims come about when it is suspected that the deceased has done something that they might not have done had it not been for the influence of another (usually the main beneficiary under the Will). Effectively, the deceased’s own judgement has been abandoned having succumbed to the manipulative behaviour of another. In order to succeed, the claimant must be able to show that the deceased was coerced into making a Will, in effect that the person making the Will was influenced to the extent that their free will was completely oppressed. Direct evidence of undue influence is unusual, given that the very nature of the act means that it happens behind closed doors hence these claims not always straightforward and the quality of evidence, be it direct or circumstantial, should be considered carefully at an early stage.
In the absence of sufficient evidence to prove undue influence, prospective claimants may wish to consider a want of knowledge and approval claim. These claims arise when the circumstances surrounding the making of a Will appear to be suspicious. A testator must have knowledge and approval of the contents of a Will in order for it to be valid. In these cases, the onus of proof is put on the party relying on the disputed Will to show that it reflects the deceased testamentary influence. Claims of this type are particularly common in respect of homemade wills.
Whilst the details of the timing and execution of the late Mr Farquhar’s Will are not known to the writer, it is possible that mental capacity could also have been an issue. An individual will be considered to have sufficient mental capacity to make a Will if he understands the following:
In circumstances whereby Field is said to have been on a mission “to set out to destroy the minds” of his victims (The Daily Mail) it is possible that Mr Farquhar did not have the requisite mental capacity at the time of executing his Will.
The harrowing death of Mr Farquhar is desperately sad serving only as yet another reminder of the vulnerability of so many.
Should you wish to discuss a disputed Will, please do not hesitate to contact a member of our team.
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.
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
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