Acting to stop harm: the FCA and Appointed Representatives
In one recent case a daughter who had fallen very far out of her father’s favour tried almost every trick in the book to have his Will declared invalid (Bateman v Overy and another ( EWHC 432)).
Ronald Overy had been married to Patricia and they had had three children: Stephen, David and Sally. When Patricia died in 2011, Ronald moved in with Stephen and his wife Wendy. Ronald sold his home and transferred the proceeds to Stephen and Wendy. At around the same time he made a Will leaving everything to Stephen. This was accompanied by two letters of wishes – dealing with the shortcomings of Sally and David respectively and explaining why he was cutting them out of his Will.
After Ronald’s death, Sally made various challenges to the 2011 transfers and the Will. She didn’t do herself any favours by refusing to return for her second day of cross examination during the trial. Nevertheless, the trial concluded and the judge made various findings – none of which were in Sally’s favour.
Lack of capacity
Sally claimed her father lacked mental capacity to make a Will in 2011. The medical evidence did not support this and her evidence was found to be unreliable. For example, she had suggested that her father had been found ‘wandering the streets’. In fact, he had simply been asked to leave a train because his ticket was only valid on buses.
Sally claimed that Stephen and Wendy had exerted undue influence on her father to transfer money to them and make a Will in their favour. She suggested that the side letters were forgeries.
The judge accepted that the relationship between Stephen and his father did raise a presumption of undue influence. However, this was rebutted on the facts. Stephen and particularly Wendy had provided a great deal of personal care to Patricia before she died. Further, it was clear that Ronald was very unimpressed indeed with his other children. He disapproved of Sally’s family life and the last straw had been her failure to attend her mother’s funeral. David had borrowed a great deal of money and never paid it back. The Court found that Ronald had not made these decisions on the spur of the moment and had reached his own conclusions in his own time.
The letters were not forgeries. Firstly, during his evidence, Stephen’s vocabulary was simply not on a par with the writing style of the letters. Secondly, they had been written following a prompt in the online Will writing software.
There was a previous Will
Sally claimed that there was a previous Will. This could not be traced and her evidence was so sketchy that the Court dismissed this suggestion. In any event, it would have been revoked by the 2011 Will.
1975 Act claim
A ‘1975 Act claim’ is a claim made under the Inheritance and Family Provisions Act 1975 where relatives and dependants who feel they have not received enough (or anything at all) on someone’s death can ask the Court to make provision for them.
Sally also made a claim under the 1975 Act that the Will did not provide for her sufficiently. This claim was doomed because, once the 2011 transfers were declared valid, there was really nothing left in the Estate.
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