CONTENTIOUS PROBATE: INHERITANCE AND RESPECTING THE WISHES OF THE DECEASED

Most people are aware of the consequences of failing to make a Will. Put simply, it means that what is left of their “Estate” (the term given to cover all worldly goods, including property owned by the Deceased) after their death will be distributed by reference to an arbitrary scheme known to lawyers as the Intestacy Rules. Some make a Will and suppose that their wishes will be respected.  Others, typically the elderly, make a positive decision never to make a Will and instead simply distribute their wealth amongst their family during their lifetimes. This can of course have tax advantages. Both schemes are vulnerable to attack by disappointed relatives who receive little or no provision from the Deceased person for one reason or another. 

A recent example where the Deceased apparently made a Will was the case of Sherrington –v- Sherrington. In the Sherrington case the Will of a lawyer, who ostensibly left the entire of his £7 million fortune to his second wife, was declared invalid at the suit of his children. In cases involving Wills, the burden is on those propounding the Will, in this case the second Mrs Sherrington, to establish, on the balance of probabilities, that the technical requirements for execution of the Will have been strictly complied with. The Judge accepted that the relationship between the Deceased and his second wife was “volatile and tempestuous”. He found that the Will, which made no provision for his children at all in spite of his wealth, did not accord with the known intentions of the late Mr Sherrington. The Judge ultimately concluded that the Will was not executed in accordance with the statutory requirements for the execution of Wills.  As a consequence, the Court revoked the grant of probate and declared the will to be invalid.

Cases involving lifetime gifts often focus on the doctrines of actual and presumed undue influence. For public policy reasons the disappointed relative is entitled to place the burden of proof on the preferred relative so that he or she must show that they did not exercise undue influence over the Deceased in order to obtain gifts of the Deceased’s assets. Typically there is found to be a relationship of trust and confidence between the Deceased and the preferred relative. If the preferred relative is unable to demonstrate that the Deceased made gifts to them after full, free and informed thought there is always a risk that the Court will return the gifts to the Estate.
If, for whatever reason, you wish to make a Will and positively disinherit or prefer a particular relative over another you should take legal advice on how to do so. It may be more sensible to leave a small legacy to the disinherited relative and to leave a letter of intention giving reasons why a particular relative has been preferred over another.

If, alternatively, you or an elderly or vulnerable relative wishes to make a lifetime gift of a significant asset so as to prefer one prospective beneficiary over another, it is advisable for the donor to seek independent legal advice. It may also be sensible to obtain a letter or report from a suitably qualified medical practitioner evidencing the donor’s physical and mental health at the time they made the gift.

Magrath LLP regularly advise in contentious probate cases. With increasingly widespread personal wealth, the fragmentation of the family, and increasing awareness of legal remedies, Estates disputes are becoming ever more commonplace. If you are a disappointed relative, or are a preferred relative facing action from a disappointed relative, we may well be able to assist you. Discrete principles of law and equity are involved and specialist advice is essential from lawyers who have experience of the relevant caselaw which is constantly evolving. We are able to assist you in resolving your dispute in a commercially sensible manner and, hopefully, with the minimum distress to you and your family.

For more information contact

Nick Goldstone - nick.goldstone@magrath.co.uk
Robin Blay       - robin.blay@magrath.co.uk
of the Dispute Resolution Department.

This article was researched and written by Robin Blay, Solicitor, Dispute Resolution Department