14/06/2018. Contentious Probate Update. Thomas Dumont Barrister, Radcliffe Chambers. To Be Covered.

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1 Contentious Probate Update Thomas Dumont Barrister, Radcliffe Chambers 1. To Be Covered 2. Lack of Capacity 3. Want of Knowledge & Approval 4. Forgery & Execution 5. Rectification/Construction 6. Family Provision Hall v. Hall LR 1 P&D 481 Persuasion is not unlawful, but pressure of whatever character if so exerted as to overpower the volition without convincing the judgment, will constitute undue influence, though no force has been either used or threatened. Currently, No presumption of undue influence in Willmaking 1

2 Wills: Clearly different from lifetime transactions, since a will itself calls for no explanation, on one level, but issues are very similar: Relationship What is relationship between testator and beneficiary? What is the beneficiary s involvement in the will-making? Transaction How does the benefit being conferred on the beneficiary by the proposed Will look? Does it call for an explanation? Who made the appointment, gave you instructions, brought in the client? Have you seen client separately (incl. H & W?) Ask about family, dependents - & expectants? Find out previous will provisions, why changed, or exclusions made Record, & (try to) assess validity of, explanation Winifred Edwards Dec d [2007] WTLR No presumption 2 Question of fact. 3 Burden of proving undue influence on person who asserts it. Not enough that facts consistent with undue influence. They must be inconsistent with any other hypothesis. (no longer good law?) 2

3 4 Undue influence is exercised either by coercion (i.e. testator s will must be overborne) or Fraud 5 coercion = pressure that overpowers volition without convincing judgment. Incl. forcing Testator to succumb for sake of quiet life. Distinguish from: persuasion, or appeals to ties of affection, or pity for future destitution. 6 Physical & mental strength of testator relevant to see how much pressure needed. Drip-drip approach may be effective in sapping the will. 7 Fraud ( fraudulent calumny ) is a separate ground of undue influence from coercion, where A poisons testator s mind against B, a natural beneficiary, by casting dishonest aspersions. 8 The mind-poisoner must either have known the aspersions untrue, or not cared whether true or false. (Honest belief in aspersions is not fraudulent calumny can this be right?). 9 Ultimate question is not whether court thinks Will fair, but whether testator acted as a free agent. 3

4 Law Commission 1 Propose statutory doctrine of undue influence, with in-built presumptions. 2 May be discretionary, may be structured 3 Religious advisers good or bad? 4 Likely to restrict want of knowledge & approval once undue influence expanded. Capacity Law Commission 1 Doesn t like Banks v Goodfellow as old (though acknowledges support for it as it works). 2 Proposes adopting MCA test (though that is facilitative, not judgmental), including a presumption of capacity(!!) + code of practice (??) 3 Seems to think that a statutory test would make law more accessible. Capacity: cases White v Philips [2018] WTLR 1559 Leeds The wife with a knife case Ball v Ball [2017] WTLR 891 The sexual abuse case Nutt v Nutt [2018] EWHC 851 No title necessary? James v James [2018] EWHC 43 & 242 Rare No Order for Costs Case 4

5 Capacity: White v Philips [2018] WTLR 1559 Leeds T diagnosed with cancer July 2009, dies July Left widow - 22 year marriage. 04/6/2010 Will leaving wife life interest in his ½ of home, rest to daughter by 1 st marriage. T said his wife threatened to stick a knife in him, turned off water heater, opened windows, and poured away milk, like Devil Wife says all delusion. Social services visitor was frightened by her. Assessed T in her car! Capacity: White v Phillips T suffering from side effects of drugs which made him feel confused and less with it. T left house 15/5/10 with bin bag of clothes, incoherent & distressed. Most professionals usually found him lucid. 27/5/10 admitted to hosp v sleepy & forgetful 28/5/10 13:00 not quite with it 16:30 gave instructions for will Capacity: White v Phillips A/N of solr: T owned other property wrong. Size of estate inaccurate. Mortgage recorded wrong. Conflicted with Lark v Nugus letter Judge accepted all were solicitor s mistakes Judge also relied on solr circling No to dr s letter required as to capacity? - Golden Rule? Daughter concerned to discover she was getting so much. 5

6 Capacity: White v Phillips Will on its face reasonable Most professionals OK with capacity. T s sister at bedside for instructions. Jocular & talking of old times Experts at trial: D s expert fine C s expert Will valid Capacity: Ball v Ball [2017] WTLR (of 11) children reported their father for abuse Mother never forgave them & cut them out of Will in 1992 Father pleaded guilty to abuse Hopeless capacity claim no mental illness, no delusion. Mother simply obstinate & wrong (tho entitled to some understanding?). Undue influence & 1975 Act claims also failed. Capacity: Nutt v Nutt [2018] EWHC will leaves Mrs N s estate equally between 3 children 2010 Will on will form (Mrs N s 1 st name misspelled), leaves all to youngest, Colin Witness = Colin s best friend. Mrs N some mental issues. Burden on Colin. Burden discharged with help of local dog-walking crowd who confirmed Mrs N said her Will left all to Colin. 6

7 Capacity: James v James [2018] EWHC 43 & 242 Combined capacity and estoppel claim. Both claims failed. D s Part 36 Offer included error. Rare No order for Costs for the entire case not pursued challenge to will at all costs reasonable basis for pursuing challenge. Best that can usually be hoped for is no order up to exchange of factual & expert evidence - Kostic Capacity Alarm Bells? At what age do we start to worry? 75 80? Has client come in under own steam? Did client make their own appointment? Is this the first time you ve met the client? Is the client eccentric or vague? Does anything strike you as odd? Are you aware of any medical condition? Do you have a capacity checklist? Capacity Lessons? See client separately. If the client won t, should sign a refusal of advice letter Try to get the Dr involved. If the client won t, should sign a refusal of advice letter Don t try your own MMSE Fact-find from client: assets, family, beneficiaries actual & potential, exclusions, reasons for exclusions, changes, reasons for changes, 7

8 Want of Knowledge & Approval Poole v Everall [2016] WTLR 1621 Vulnerable and almost incapable individual subject to influence from carer, who was left 95% of 1m+ estate (up from 2.5%) - charities, brothers omitted partner reduced from 10% to 5%. Carer prepared will himself. Recorded execution on ipad. Unimpressive. Suspicions raised. Burden on Carer. Want of Knowledge & Approval Carer unable to discharge the burden of showing that Dec d knew and approved of the terms of the Will Other grounds for challenge: no due execution failed. lack of capacity failed. Not challenged on undue influence, but might have succeeded there, too Want of Knowledge & Approval Ashman v Thomas [2017] EWHC 3136 Extraordinary saga. Ashman procures 3 Wills from his sister in his favour, each cutting out her beloved children. Master Mathews decides that only 2 of them fail as not executed properly, over-relying on presumption of due execution. But Ashman fails to pay the costs of that trial, so his claim to prove 1 st Will is struck out. What then? 8

9 Want of Knowledge & Approval That leaves son s counterclaim to pronounce against 1 st Will to be tried. Incapacity rejected evidence very thin. Want of K & A accepted, primarily on basis of social worker s evidence that: T only wanted to benefit her children and T said of her brother that he would steal from a dead rat. Forgery & Execution Re Prabhavati Patel [2017] EWHC 137 Patel family s worldwide interests $200m Mother s estate key to control of 50m Mother s 1998 Will left all to son Yashwant Son Girish fell out with most of the family Will only remembered 3 years post death. Forgery & Execution Re Prabhavati Patel [2017] EWHC 137 Forged using old paper T had signed in blank (in accordance with family practice) Impressive expert evidence revealed forgery Witnesses discredited by private detective following them prior to the trial, establishing conspiracy to pervert the course of the civil trial. Costs bill of 1.3m 9

10 Forgery & Execution Re Prabhavati Patel Contempt of Court application Heard November 2017 Girish found in contempt and sentenced to 12 months in prison Witnesses received 3 months, suspended Forgery & Execution Re Payne Deceased [2018] EWCA law changed from witnesses subscribing to signing Witnesses printed their names. Still = signing, even though not signatures. NB s. 9 attests & signs to be changed to signs see Law Commission Making a Will AOB - Trusts English v Keats 28/3/2018 Deed of Appointment not executed by one of the 3 trustees. Still valid, as trustees had resolved to appoint, and old cases supported application of principle that equity looks on as done, that which ought to be done to complete incomplete execution of the deed 10

11 Construction/Rectification Hives v Machin [2017] WTLR 983 Legacy of Bldg Soc account (holding 50,000) to Eric and share of residue (for such Eric & Peter as shall survive me & if more than 1, in equal shares). T loses capacity. B/Soc a/c closed and funds invested in larger portfolio with bank. Eric predeceases T. Construction/Rectification Hives v Machin [2017] WTLR 983 S. Legacy of Bldg Soc account (holding 50,000) to Eric and share of residue (for such Eric & Peter as shall survive me & if more than 1, in equal shares). T loses capacity. B/Soc a/c closed and funds invested in larger portfolio with bank. Eric predeceases T. British Red Cross v Werry [2017] WTLR 441 D s intestacy leaves co-habitee of 46 years destitute Act claim settled in life interest in home. On her death, house cleared & will found leaving her everything. Settlement set aside on appeal (out of time), for common mistake. But NB - unopposed. 11

12 Blackwell Dec d, Lewis v Warner [2017] WTLR 1243 CA fam prov defence to possession claim vs 91-yr old. Co-habitee awarded Dec d s house absolutely, on the basis that he pays full market value for it, 385,000. Such an order was within the 1975 Act, and did not mean that he had failed to establish that he needed financial provision for his maintenance from the estate. Martin v Williams [2018] WTLR 1041 Old will leaves D s estate to wife of fossil marriage. Includes half-share in house occupied with co-habitee. Wife s home + 163,000 passes to her by survivorship Judge understandably gives co-habitee the other half of the house she lives in. Mar n v Williams [2018] WTLR 1041 On appeal to High Court judge, absolute interest in ½ replaced with life interest. C should be prepared to evict her sister from house inherited by them from father, despite promise to father. That will provide her with ample means. Judge wrong to leave this out of account. Absolute interest excessive life interest perfectly adequate. Trust fine - Hostile personal feelings will evaporate after case. 12

13 Nahajec v Fowle [2018] WTLR 1071 Father left 265,000 Estate to a friend Son unable to work. His claim settled for 22,000. Daughter, 31, in work. Parents separated when she was 11. No relationship with father after that. Nahajec v Fowle [2018] WTLR 1071 In Will, father said: not seen her in 18 years, thought she was not interested in him & She was independent enough financially not to require help. Wrong on all 3 counts. Nahajec v Fowle [2018] WTLR 1071 Daughter s income 15,000 pa, just gets by (ignoring 7000 debt connected to health scare). So did need help Daughter had seen father over 3 years of the supposed 18 year period. Daughter was interested in father. He rebuffed her. 13

14 Nahajec v Fowle [2018] WTLR 1071 Dec d s views did not undermine daughter s evidence that relationship failure Dec d s fault, & she d tried to rekindle it. Dec d decision therefore unreasonable, and that was a factor in the balance. Since wishes mistaken, could be ignored. Daughter in need, & realistically keen to become veterinary nurse at cost of 11,500. Nahajec v Fowle [2018] WTLR 1071 Judge noted that Ilott award 50,000 of 465,000 estate, roughly = 10% Daughter asked for 77,000. Allowing for prospective student loan, reduced to 59,000 (22% not, superficially, too much) Defendant said no more than 7000 to pay off debts Awarded 30,000 (11%) Miles v Miles [2018] WTLR year marriage. Divorce ongoing at H s death Estate 380,000 (incl. 272,000 ½ house owned with W). 260,000+ had been paid out to H s new partner and sons out of pension fund benefits. Wife had housing needs of 300,000 and income needs which exceeded balance of the Estate. DJ gave Estate to W 14

15 Miles v Miles [2018] WTLR 1347 Son earning 25,000 pa & owning house with 100,000 equity, appealed award in favour of his mother. Judge relied on Ilott deciding that H s wishes could not be ignored, despite total abnegation of obligations to W. Judge felt that shall have regard to divorce award meant must reflect it in some way. 100,000 to 2 sons, rest to W. Can it be right? What advice should you give? 1: Do not try to quantify claim6 2: Take full note, incl. reasons for omission 3: Advise client to consider writing to cut-out child copy to you 4: Revisit will periodically 5: Consider tempting legacy proportionate to Estate? e.g. 50,000 for 250,000 estate ,000 for 500, ,000 for 1m 6: Offer no-contest clause in addition to legacy? Dellal v Dellal [2015] WTLR 1137 Failed strike-out of widow s claim. Widow worth 40m herself, received entire 15m estate by Will. She thought Deceased was worth 450m Started proceedings to unstitch any gifts made in the 6 years before death with intent to avoid order: s