19 March 2009
Contentious probate: Shah & another v Joshi
Shah & another v Joshi  EWHC 1766 (Ch)
One of the best ways to identify potential issues that might lead to contested probate claims is to look at the facts and outcomes of cases, which have already been determined by the Court. The case of Shah v Joshi included a consideration of almost every aspect of these two most common types of claim.
B P Collins acted for Mr Shah in relation to his late mother's estate. Mr Shah was concerned that a document purporting to be the last will and testament of his mother and leaving the vast majority of her estate to her daughter (Mrs Joshi) was not a valid will. 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 represented a stark departure from an earlier will, which left the majority of the estate to Mr Shah. The principle asset in the estate was a two-thirds share in a property, in which the deceased lived with Mr Shah and his family. Mr Shah owned the remaining one-third.
The will was written in English although the deceased spoke only Gujarati. Mr Shah said his mother was illiterate and yet the will contained no attestation clause, confirming that it had been read to the deceased and translated for her. Fundamentally, however, the signature on the will appeared to be different to the deceased's usual signature, not only in terms of style, but also in substance; written in Gujarati, the signature read Nirmalaben Kantibhai Shah whereas Mr Shah maintained that his mother was known as Nirmalaben Kantilal Shah and, being illiterate, would not have known how to write her name any other way.
Mr Shah challenged the validity of the will, arguing that the signature on the will was a forgery and that even if it was not a forgery, his mother did not know and approve the content of the will (which also included a consideration of her testamentary capacity). Mr Shah also sought directions from the Court in relation to a proposed Inheritance Act claim on the basis that if the will was found to be valid, then it failed to make reasonable financial provision for him and his family. The effect of the new will could have been to effectively make Mr Shah's family homeless. If the will was found to be valid, Mr Shah's intention was to issue his Inheritance Act claim after the validity proceedings, as and when a grant was issued.
The six-day trial, heard by Mr John Randall QC, included evidence from handwriting experts (regarding the signature on the will), evidence from an expert on Gujarati custom and practice (regarding the difference in the names Nirmalaben Kantibhai Shah and Nirmalaben Kantiblal Shah) and medical evidence in relation to the deceased's capacity and state of mind at around the time the will was said to have been prepared and executed. The solicitor who prepared the will was called to give evidence, along with the attesting witnesses and a number of other lay witnesses who gave evidence as to the deceased's relationship with her children.
The Judge found that the signature on the will was indeed 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 looking at this case and also the basic themes of all contested probate claims.
Some of the technical requirements are fairly basic. However, solicitors and will writers should be careful to ensure that the formalities for a will are followed and proper advice is given regarding the execution of the document. Best practice would ordinarily dictate that a solicitor or will writer is present when a will is signed. If this is not possible, the professional should ensure they have a written record of advice to the testator, suggesting they are present for the execution (and, for example, offering to visit the testator, if they are unable to visit the professional) but if the client wishes to make their own arrangements, then giving clear instructions as to how the will should be executed.
As for checking capacity, professionals should do what they can to follow the "golden rule". They should also keep a careful note of all of the instructions they receive and advice they provide, as well as notes of conversations with the testator and particular questions asked to try to determine capacity. Will writers can be required to produce copies of their will files and provide a statement in accordance with the case of Larke v Nugus  WTLR 1033 and the impressions formed by the will writer and their subsequent assessments of capacity are likely to be less open to criticism and challenge if a will file is complete and comprehensive.
This is even more important in light of section 2 of the Mental Health Act, which provides that "a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success". The test requires an examination of the "practical steps" taken by professionals to help a testator make a decision, in circumstances where they might lack capacity. Those "practical steps" should be well documented.
Generally, testators should be aware of the risks of future claims against their estate and should consider specifically the problems that might arise from leaving a will, which disinherits certain individuals or leaves their estate unequally between beneficiaries, particularly where those beneficiaries are all in the same "class".
Professionals should consider all of the potential pitfalls, which might lead to contested probate litigation. They should advise clients of the potential claims and how to best avoid a dispute in the future, bequeathing assets equally and fairly and ensuring that family and friends will understand and accept the reasons for any departure from what might be considered "the norm", perhaps by preparing a side letter of explanation, to be read in conjunction with the will upon the testators death.
However, whatever precautions are taken, there is no guarantee that litigation will not follow. Professionals should be alive to potential claims when dealing with estates and should try to identify potential problems at the earliest possible stage and consult an expert in the field of contentious inheritance.
In Summary, there are a number of grounds on which a will can be challenged, some of which are easier to establish than others. Even a valid will can be challenged under the Inheritance Act. And, if you have a client who is considering making a will in which the provision for family members might be perceived to be unfair, tell them to consider the disputes that are likely to arise in their memory, after they have gone.
(This article was first featured in Entitlement, the newsletter of Title Research).