Testamentary Capacity and Undue Influence – When does a Professional Negligence Claim arise?
Please note that the questions and answers on this page are for general information only and must not be used as a substitute for legal advice. You should always take legal advice which is tailored to your specific circumstances.
You can contest a Will on the basis that it is invalid by relying on one or more of the following grounds:
You may alternatively consider that the Will is valid but feel that you have not been sufficiently provided for (if at all) and therefore think about making a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
A Will does not come into effect until a testator has passed away. If you have concerns about the validity of a will during the testator’s lifetime, no claim to challenge its validity can be pursued until the testator has passed away however you can attempt to address your concerns about its validity with the testator directly.
Claims challenging the validity of a will should ideally be brought before the Grant of Probate is issued in order to ensure the assets in the estate are preserved and no distributions are made until the dispute is resolved. A caveat can be lodged to prevent a Grant of Probate being issued. If a Grant of Probate has already been obtained, you can still challenge a Will however you should seek to obtain advice as soon as possible.
Claims rarely begin with the issue of proceedings and most commonly initially involve correspondence between the parties and/or their lawyers. Setting out a good claim carefully and exploring another parties’ strengths and weaknesses is a necessary starting point, rather than getting drawn into emotive correspondence and making inflammatory allegations. Early disclosure can resolve disputes, as can obtaining expert reports.
In all cases, Alternative Dispute Resolution (ADR), particularly mediation, should be considered. If the dispute cannot be resolved by agreement, a claim form will need to be issued in court supported by a properly pleaded case, following which the opponent will serve a defence. The exact procedure will depend on the relief or remedy being sought. The court will then lay down a directions timetable to trial, which will include requiring the parties to disclose documents and exchange witness evidence.
The vast majority of cases are settled before trial, but if that is not possible it is likely that it will take approximately 12 to 18 months to reach a trial from when the court proceedings were issued. If you are a Personal Representative, your role in the proceedings will often be neutral, subject to some specific exceptions.
Only the executors appointed in a Will are entitled to view the will before the Grant of Probate has been granted. If an executor refuses to allow you to see the Will or provide you with a copy before the Grant of Probate is granted, they cannot be required to do so.
However, in practice, it is unusual for a Will not to be provided if requested. There is case law (Larke v Nugus (1979))which confirms that if a solicitor has taken instructions and prepared a Will, the solicitor is a material witness and should therefore provide the information in advance and make available any documents in their possession that are relevant to any proceedings. This also avoids the cost of unnecessary applications to court. If it becomes necessary to issue and application for disclosure of the Will and associated documents, the solicitor may be liable for the costs of that application.
Generally, after the Grant of Probate has been issued, the Will becomes a public document and anyone can then apply to the Probate Registry for a copy.
Timing can be of critical importance in probate disputes, and a relaxed approach might have disastrous consequences. For example, any claim under the Inheritance (Provision for Family and Dependents) Act 1975 must be made within six months of the issue of the Grant of Probate.
Likewise, urgent action may be required to protect assets in the meantime, whilst claims are under consideration. We have the experience to know which deadlines are crucial and what steps need to be taken to protect our clients' interests and the capacity to react accordingly.
It is unlikely, since you will only need to go to court if the case goes to trial. If the case does go to trial you will almost certainly attend court and give verbal evidence along with the other witnesses. If there is to be a settlement before trial, it is possible that you will need to come ‘face to face’ with your opponent at a meeting or mediation.
A no contest clause (also known as a forfeiture clause) is a clause in a Will which states that a beneficiary will forfeit their inheritance if they challenge the Will.
A beneficiary should always check for the existence of a no contest clause before challenging a Will because, if their challenge is unsuccessful, they will lose their legacy.
Naturally, if a challenge to the validity of the Will is successful and the whole Will is found to be invalid, the no contest clause won’t apply.
There are a number of requirements to ensure that correct formalities have been followed, including:
An individual will be considered to have sufficient mental capacity to make a Will if he understands the following:
If a Will appears rational then there is a presumption that the testator had mental capacity and the Will will be admitted to probate unless anyone can produce sufficient evidence to the contrary.
If you have doubts about the capacity of a testator then the best place to start is probably the file of the solicitor who prepared the Will.
When making a Will for an elderly or ill testator, or anyone with dubious testamentary capacity, it is best practice for the solicitor to obtain a written medical opinion and, if possible, to arrange for a doctor to witness the signing of the Will. If either of these steps have been taken, it will be difficult to challenge the testator’s mental capacity.
In the absence of a medical opinion or doctor’s signature as a witness, there may be a file note made by the solicitor, commenting on the testator’s capacity and referring to their behaviour and state of mind at the time of execution of the Will. This may also provide good evidence that the testator had the requisite testamentary capacity.
It should be noted that the usual deterioration of memory with old age does not necessarily mean that the testator lacks capacity and, even if there are general doubts about the testator’s capacity, a Will may still be valid if it can be shown that it was made during a lucid interval.
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 testator’s testamentary influence. Claims of this type are particularly common in respect of homemade wills.
If you suspect that the testator 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) a claim under this ground may arise. Effectively, the testator’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 testator was coerced into making the Will.
The Will might have been prepared by a beneficiary who forged the signature of the testator either before or after their death. In these types of claim, a handwriting expert would normally be instructed.
A Will could be fraudulent if the testator has left someone out that would otherwise have benefited on the basis of misrepresentations made by another person. Alternatively, whoever drafted the Will on behalf of the deceased could have left a large portion of the estate to himself without the deceased knowing.
When somebody dies and there is no will in place or no valid Will in place, they are said to die ‘intestate’ and their estate will pass according to a fixed statutory order of entitlement.
If your partner passes away and you were married and you have children, you will receive all of his or her personal effects and the sum of £250,000 (subject to it being available). The remainder of his or her estate will be divided into two equal shares. You will receive the income from one of the shares for the rest of your life, with the capital being preserved for your children after your death. The other share will pass to your children in equal shares.
If you are married without children and your spouse is survived by either or both of their parents or whole blood siblings, you will receive all of his or her personal effects and the sum of £450,000. As above, the remainder of his or her estate will be divided into two equal shares but this time you will receive one share absolutely. The other share will pass to your spouse’s parents in equal shares if they are still alive, failing which to your spouse’s siblings in equal shares.
If you are married without children and your spouse is not survived by either or both of his/her parents or whole blood siblings, you will receive the entire estate outright.
If you are not married to your partner, you will not be entitled to anything at all.
If someone other than a partner passes away, the rules of intestacy provide for what you may be entitled to and we will be able to advise on this.
You are able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if you believe that insufficient provision or no reasonable provision has been made for you under the Intestacy Rules, please see the questions of the 1975 Act below.
There are various reasons which a beneficiary may wish to challenge an executor of a Will. If they feel that an executor is not performing their duties, there are some steps which can be taken to either get the executor to renounce their position or not take up the role in the first place.
This is where the executor steps down if they decide that they do not want to act, or decide that they cannot act following the death of the testator. This step cannot be taken if an executor has taken active steps in dealing with an estate. Once a grant of probate has been obtained, he cannot simply step down and other steps will need to be considered.
It is usual that, through correspondence, joint executors can come to an agreement as to what would be in the best interests of all of the beneficiaries. However, joint executors do need to act in agreement in order for probate to be progressed.
If an agreement cannot be reached, or an executor of the estate is not performing its duties, and the grant of probate has already been issued, then it is possible for one executor to make an application to court to remove the other; or alternatively if a dispute with a joint executor cannot be resolved, and the grant of probate has already been issued, then it is possible for one executor to make an application to court to remove the other.
The Inheritance (Provision for Family and Dependants Act) 1975 (the Act) enables certain categories of persons to make a claim against an estate provided they can show that they were financially dependent on the deceased and that the deceased did not make adequate provision for them in their Will. Any claim under the Act must be made within six months of the issue of the Grant of Probate.
The following categories of persons are eligible to make a claim under the Act:
Under Section 3 of the Act, the court will take into account the following factors when deciding whether a reasonable financial provision has been granted for a claimant:
a) the financial resources and needs of the applicant;
b) the financial resources and needs of any other applicant;
c) the financial resources and needs of the beneficiaries;
d) any obligations and responsibilities of the deceased towards any applicant and any beneficiary;
e) the size and nature of the estate of the deceased;
f) any physical or mental disability of any applicant or beneficiary;
g) any other matter, including conduct, which the court may consider relevant.
In relation to an application by a surviving spouse, the court is also required to consider:
a) The age of the applicant and duration of the marriage;
b) The contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.
As a spouse or partner of the deceased (providing you were living in the same household as the deceased in the two year period immediately before his death) you would be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
Spouses and civil partners are entitled to such provision as it would be reasonable in all the circumstances for them to receive (whether or not that provision is required for their maintenance). Amongst other factors, the court will consider the age of the applicant and the length of the marriage, the applicant’s contribution to the welfare of the deceased’s family and the provision which the applicant might reasonably have expected to have received if, instead of the marriage being terminated by death, the marriage had instead been terminated by divorce.
As a child of the deceased you would be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
The claim is limited to such provision as would be reasonable in all the circumstances for the applicant to receive for his or her maintenance.
The fact that you are estranged from your mother or father would not affect your eligibility to make a claim against their Will under the Inheritance (Provision for Family and Dependants) Act 1975. Your estrangement will however almost certainly be taken into account by the Court in assessing the strength of your claim.
Traditionally, the courts have been reluctant to make provision for able bodied, adult children under this Act but recent case law has suggested a greater sympathy towards such claims.
A trust is an arrangement defined by law whereby an individual, or a group of people, are given legal title and responsibility for the ownership of assets for the benefit of some other person or group of people.
A trust is ordinarily created in one of two ways:
i. by a deed of trust for a trust created during the lifetime of the person or people giving assets to the trust; or
ii. by a will for a trust that is to be created on the death of the person making the will.
The parties to a trust are as follows:
i. The trustees who have legal title to the assets in the trust and are responsible for administering the trust in accordance with its terms;
ii. The beneficiaries who are able to benefit from the assets held in the trust;
iii. A settlor who gives assets to the trust;
iv. A protector who is responsible of ensuring that the trustees operate the trust in accordance with its terms and the intent of the settlor.
Trustees have various legal powers to administer a trust, the scope of which are set out in the trust instrument. Some trusts are extremely prescriptive whereas other trusts allow the trustees to exercise their discretion on how best to allocate trust assets and income.
Trustees have duties of honesty, integrity, loyalty and good faith to the beneficiaries of the trust. The trustees must always act in the best interests of the beneficiaries. They must observe the terms of the trust, exercise reasonable care and ensure the correct distribution of assets, act impartially between the beneficiaries and provide certain information to the beneficiaries when asked to do so.
Yes, a troublesome trustee can be removed but the law in this area is complex. The first port of call is to check the trust instrument to see if a power to remove trustees has been vested in another party (namely the settlor, or a beneficiary/group of beneficiaries).
There are also statutory powers enabling a trustee to be removed without the court’s intervention.
The Trustee Act 1925 provides that if a trustee is “dead or remains out of the United Kingdom for more than 12 months, or desires to be discharged from all of any of the trust or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, or is an infant” they may replaced by another trustee (subject to restrictions). Some of these grounds are far more difficult to show than others, in particular that a trustee is “unfit” or “incapable”.
The Trust of Land and Appointment of Trustees Act 1996 allows beneficiaries who are of full age and capacity and who are absolutely entitled to the property subject to the trust to unanimously agree to replace a trustee. The power is only available in the instance that there is no provision in the trust instrument to appoint other trustees and the power under the Act is not excluded in the trust instrument.
The last resort is to look to the court to remove a trustee. The court’s main guide is the welfare of the beneficiaries and in instances of serious misconduct the decision to remove a trustee is likely to be straightforward however in all other instances it is less clear cut. For example, friction or hostility between the trustee and the beneficiaries is not of itself enough to have a trustee removed.
Trustees have a duty to keep beneficiaries informed and to provide trust accounts and beneficiaries have what is referred to as a “legitimate expectation of disclosure”. This means that they can expect to be provided, upon request, with trust documents which set out key information about the trust such as the trust deed, deeds of appointment/retirement and trust accounts. However beneficiaries are generally not entitled to see documents pertaining to the trustees’ decision-making process, such as correspondence between the trustees, agendas and minutes of meetings.
It is important to note that a beneficiary must be able to prove that his/her prospect of benefiting under the trust is sufficient to enable the disclosure of information he/she is requesting.
We can provide advice to both beneficiaries and trustees as to their rights and duties in respect of the provision of information relating to trusts.
If a trustee wishes to change the express terms in the trust, they can either rely on a clause in the trust deed or seek the consent of all the beneficiaries to the trust. If either of these things are not possible, then the trustee will need to seek the assistance of the court.
If all the potential beneficiaries of a trust are of full age and capacity, and are absolutely entitled to the trust property, they are able to bring the trust to an end and share out the assets in whatever proportions they decide, or resettle the assets on agreed terms.
If all parties agree that there is a problem which needs a solution, typically in relation to the construction or administration of the trust, this is known as a “friendly dispute”. In these circumstances, the trustees would generally adopt a neutral stance and their costs would usually be paid by the trust.
If however, there is a third party claim brought by or against a third party, a trustee will be liable to pay their own costs and may risk liability to pay the costs of the third party in the event of an adverse costs order. In these situations, it is common practice for a trustee to apply to court for directions as to whether to bring, continue or defend proceedings.
This is known as a “Beddoe Order”. This ensures that trustees are indemnified by the trust fund for their own costs and any adverse costs in the event that the proceedings are unsuccessful.
Where applicable, a Beddoe application should be made as soon as possible and ideally before taking any steps in instigating or defending the third party litigation.
There are a number of ways in which clients can fund their claims and at the outset of any potential claim we are conscious that this will be one of the most important issues for clients to consider, particularly in circumstances where they are concerned about their financial position following the death of a loved one.
Please see our funding page for general information on funding. We would be happy to discuss the potential options with you, should you be interested in instructing us to pursue or defend a claim.
One question we frequently encounter is whether we offer “no win no fee” type funding arrangements such as a Conditional Fee Agreement (“CFA”). This is something we are willing to consider on a case by case basis.
* Some of the definitions in this Glossary are from the Oxford Dictionary of Law
Alternative Dispute Resolution (see also Mediation): Various methods of resolving disputes otherwise than through the normal trial process.
(1) A person entitled to benefit from a trust. (2) One who benefits from a Will.
A deed by which the beneficiary under a Will or an intestacy redirects the gift to some other person (who may or may not be a beneficiary of the estate).
The Civil Procedure Rules (CPR) which govern litigation in the English Courts allow a party to obtain before commencement of proceedings disclosure of documents of a type normally disclosable in litigation
The aggregate of all the property to which a person is beneficially entitled.
The process by which a testator’s Will is made legally valid. The Will must be signed at the end by the testator or someone authorised by him, and the signature must be made or acknowledged by the testator in the presence of at least two witnesses, present at the same time, who must themselves sign the will or acknowledge their signatures in the testator’s presence.
A person appointed by will to administer the testator’s estate.
Document issued by the Probate Registry authorising the executors to administer the estate.
The state in which a person dies without having made a will disposing of all his property.
The Intestacy Rules (set out in the Administration of Estates Act 1925) determine who gets what if an person dies without making a will
Proceedings are started when the court issues a claim form at the request of the claimant.
A form of alternative dispute resolution in which an independent third party assists the parties involved in a dispute or negotiation to achieve a mutually acceptable resolution of the points of conflict.
Two wills are mutual wills if there is an agreement between the two testators (typically husband and wife) that the wills should not be revoked.
A person entitled to deal with a deceased person’s estate in accordance with his Will or under the rules relating to intestacy.
The official proving of a Will.
A person who creates a settlement.
A disposition of land or other property, made by deed, Will, or very rarely by statute under which trusts are created by the settlor designating the beneficiaries and the terms on which they are to take the property.
A person who makes a Will.
A person having a nominal title to property that he holds for the benefit of one or more others, the beneficiaries.
An arrangement in which a settlor transfers property to one or more trustees, who will hold it for the benefit of one or more persons who are entitled to enforce the trust, if necessary by action in court.
A document by which a person (called the testator) appoints executors to administer his estate after his death, and directs the manner in which it is to be distributed to the beneficiaries he specifies.
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