03 May 2009
Conflicts during probate often arise when disgruntled relatives and disappointed beneficiaries suspect foul play. Whilst some claims are unwarranted, all are taken seriously.
Craig Williams, senior associate in the litigation practice at B P Collins, knows that contesting a will can be time consuming; not only for prospective beneficiaries but also for personal representatives and professional advisers. By understanding why and how a will can be challenged you might prevent future claims and avoid family disputes.
Craig explains: "Common claims include challenges to the validity of a will and whether a will makes reasonable financial provision for certain family members under the Inheritance (Provision for Family and Dependents) Act 1975."
In a recent High Court case dealing with both types of claim, B P Collins acted for a client, who was concerned that his late mother's will was a forgery. The alleged will left the majority of the estate to the daughter, representing a stark departure from an earlier will, which left the majority of the estate to the son.
"On the face of it, it appeared that the will had been executed less than four weeks before his mother died, when she was in a frail and infirm condition. The will was written in English, although the deceased only spoke Gujarati. Our client also said his mother was illiterate and yet the will contained no attestation clause confirming that it had been translated and read to the deceased. Fundamentally however, the signature on the will appeared to be different to her usual signature, not only in terms of style, but also in substance."
There was also a proposed claim under the 1975 Act, since the reality of the new will would effectively make him and his family homeless as they lived with his mother at the time of her death.
The trial included evidence from handwriting specialists, an expert on Gujarati custom and practice and medical evidence in relation to the deceased's capacity and state of mind at the time the will was prepared.
The solicitor who drafted the will was called to give evidence, along with the attesting witnesses and a number of other witnesses who gave evidence on the deceased's relationship with her children. After six days the Judge found that the signature was a forgery and that even if the deceased had signed the will, she could not have known and approved its contents.
A number of lessons can be learned from this case, such as the need to follow technical formalities and to ensure the testator has the mental capacity to make a will and knows what they are signing.
"It is also important to consider the problems that might arise from leaving a will which disinherits certain individuals or distributes an estate unequally between beneficiaries. You should ensure that family and friends will understand and accept the provisions, perhaps by preparing a side letter of explanation to be read in conjunction with the will."
Craig concludes: "Unfortunately, whatever precautions are taken there is no guarantee that litigation will not follow. Try to identify potential problems at the earliest possible stage and consult an expert in contentious inheritance at the first sign of trouble."
For legal advice, please contact Craig in the litigation and dispute resolution team on 01753 279037, email disputes@bpcollins.co.uk or complete the online enquiry form. |
