2020 has been a year like no other, and undoubtedly the significant change in the law of contentious probate has been the amendment to the Wills Act 1837 which had been unchanged legislation for approaching 200 years.
There had been much debate in previous years about changes being required to the strict formalities for making a valid will to reflect modern lifestyles, societal changes and technological advances. But the response to the Covid-19 global pandemic was the trigger point for change and relaxation to the rules.
The changes have prompted much speculation as to whether there will be more people looking to contest a will. The pandemic itself may lead to more inheritance dispute claims; with the tragic excess deaths, often unexpected or premature, before affairs could have been put in place properly.
Thakre v Bhusate (2020 EWHC 52 Ch)
Usually, a claim has to be brought under the Inheritance Act within six months of the date of the grant of probate. In this case, the deceased's widow, Mrs Bhusate, was granted permission to bring a claim more than 25 years out of time, and 30 years after her husband's death, the most extended delay to have been considered by the court under section 4.
It is possible to apply to bring a claim out of time under section 4 of the Inheritance Act in limited circumstances, and the court has an unfettered discretion to allow such applications. The court will only grant permission if it is satisfied there is a meritorious claim, there is no prejudice to anyone in the claim being pursued (usually where the estate is still yet to be distributed) and will consider the reasons for the delay.
In this case, the Judge made it clear that a lengthy delay without reasonable explanation is still likely to result in an application being refused. Still, here the Judge was satisfied that negotiations for settlement of the widow's claim had been ongoing throughout and the beneficiaries had been being obstructive.
Weisz v Weisz ([2019] EWHC 3101 (FAM)
In this case (heard October 2019) a successful application for interim provision under section 5 was made which allows the court to make interim payments if it appears that the applicant is in immediate need for financial assistance, but it is not possible to determine yet what award (if any) should be made overall in the claim. It can often be an extremely useful section as claims are based on applicants having a financial need, but they can take 12-18 months to reach trial.
In this case, the value of the estate was approximately £4M. The person contesting the will was the deceased's widow. She was awarded a sum by way of contributing to her legal fees and covering her day-to-day living expenses pending the conclusion of her substantive claim. She undertook to repay these sums in the event her overall claim was unsuccessful, or the value of her interim provision exceeded her total award at trial.
What was particularly interesting about this case was the Judge's comments on the costs and a reminder to be cautious. He expressed concern 'if not astonishment' at the costs incurred in the context of the total amount being sought in the interim provision and said 'it cannot be proportionate for so much money to be spent on this issue and it is very sad indeed that the parties have been unable to settle today's application', and he went on to say that he hoped the parties reflected on the fact that 'if this were a commercial deal rather than a family row, they would not have spent this amount of money on this litigation because it would not be commercially sensible to do so, and the only way they are going to settle this litigation … is by standing back and taking a commercial view, on advice'.
Inheritance Act – adult children
Shapton v Seviour [2020]
This leads us to Shapton v Seviour in which the Judge did not hold back in his criticism of the conduct in the case.
This was an adult child Inheritance Act claim. In August 2016 Colin Seviour died leaving his estate to his wife, Maria Seviour.
His estate was valued at approximately £268,000. Maria suffered from motor neurone disease. His daughter Carly brought a claim for provision from the estate. Maria defended the claim against the estate by arguing that Carly already enjoyed an 'affluent' and 'comfortable' life with luxurious holidays.
Not only did Judge Stephen Lloyd dismiss Carly's claim for the provision of £75,000 from her father's estate but in doing so, he commented that the claim was "absolutely hopeless".
Judge Lloyd commented, "firstly, the estate is a small one, and some 80% is tied up in Maria's house, where she has lived for many years and wishes to remain for as long as possible". He went on to state, "Maria suffers from a debilitating illness which will ultimately prove terminal. However, the prognosis for motor neurones disease is notoriously uncertain. She will need every penny to live out her remaining years in dignity and comfort".
In relation to Carly, Judge Lloyd commented, "on the other hand, Carly and Jake, her husband, are relatively well off… she and her husband have a high combined income, which is more than adequate to meet their day to day needs". They had some debt which the Judge described as being "self-inflicted".
Judge Lloyd found that Carly, "was motivated by the view that she was entitled as of right to one quarter of her father's estate". He continued, "she clearly is not. The will is quite clear: Maria, having survived her husband, takes the estate outright".
Not only did Judge Lloyd dismiss Carly's claim, but he also ordered for Carly to pay the legal costs for the case.
Although the decision itself might not be all that surprising, Judge Lloyd's blunt comments have sparked debate within contentious probate circles as to whether there are too many 'hopeless' cases not only being intimated and settled at an early stage to avoid litigation cost and risk but actually also being fought to trial incurring significant legal fees. It is clear that family politics and emotions can play a role in motivating such claims. However, it is essential to refer back to the Inheritance Act and clear case law precedent. The Inheritance Act is not designed to compensate disappointed beneficiaries, but only those who have a genuine financial need.
Mrs Bascoe died aged 97 in 2015 leaving a will made in 2005 in which she left £100 to her daughter Ms Johnson and the residue to her son Mr Barnaby. A solicitor made her will, and she left a note explaining her lack of provision for Ms Johnson, which she attributed a lack of care and concern and rudeness and unpleasant treatment towards her. Ms Johnson sought to challenge the will on all possible grounds being a lack of testamentary capacity, want of knowledge and approval, undue influence and forgery.
She was unsuccessful on every ground.
In summing up, the Judge concluded:
"The 2005 Will is rational' and, having been validly executed, 'the strong presumptions in favour of validity are present… Miss Johnson has come nowhere near establishing the basis for any proper challenge; there is no documentary evidence which supports her and in particular nothing from independent third parties, especially in contemporaneous documentary form. Her evidence has been contradictory, self-serving and deliberately misleading. That of her witnesses does not assist her in any respect. I have no hesitation in finding for the Claimants."
Often in cases such as these more than one ground is pleaded because it is difficult for people to establish precisely what happened and because the facts overlap.
However, there is a greater risk of failure in this approach, i.e. in trying to prove one ground, the risk is that another is disproved. For example, in this case, Ms Johnson tried to argue both that Mr Barnaby had forced their mother to make the will and on the other that the signature to it was not that of her mother. The danger in attempting to plead everything is that a person trying to contest a will is trying to 'make the facts fit', which resulted in this case. People looking to dispute a will are generally better advised to focus on one or two grounds that are likely to have the best prospects of success.
This case also serves as a salutary reminder that a will cannot be challenged simply based on perceived unfairness, inequality as between siblings (or other beneficiaries) or just because the terms are not to the liking of a disappointed beneficiary. Testamentary freedom overrides. The court will require the most substantial evidence to find a will to be invalid. It is extremely difficult to succeed where the medical records and solicitors' evidence are all supportive of validity. Case law has historically found it to be 'a very strong thing' to overturn a will which has been professionally prepared. This remains the trend.
Lastly, Ms Johnson brought the claim herself without legal representation. The case highlights the importance of taking legal advice. A specialist solicitor would have been able to conduct an unemotional review of the evidence and would probably have concluded at the outset there was no prospect of success saving a good deal of time, heartache and costs for all involved. On the question of costs, if she were successful, Ms Johnson would have received £10,000 under the terms of the earlier will.
While her costs would be negligible because she represented herself, the usual rule is that the losing party pays the winner's costs and it is not uncommon for costs in this sort of litigation to run to £100,000 - 150,000. The claim, therefore, had neither commercial nor legal merit.
There were two other significant will validity cases in 2020 concerning testamentary capacity.
Goss-Custard v Templeman & Ors [2020] EWHC 632 (Ch)
Lord Templeman was a very well renowned member of the judiciary, and his legacy in respect of private client law continues to dictate best practice today. Lord Templeman is particularly known for his advent of the "golden rule" surrounding testamentary capacity. Despite this history, ironically, after he died in 2014, there was a dispute over his own will. The root of the argument was whether Lord Templeman had testamentary capacity when he made his will in 2008.
Lord Templeman started to experience memory problems so far back as 2006, but he was never tested for, and therefore diagnosed with, any problems. His condition deteriorated over the remaining years of his life. He made his will in 2008. Expert evidence given to the court suggested that, despite the anecdotal evidence that Lord Templeman may have struggled with some elements of recall around the time, his short-term memory problems did not mean he did not have sufficient testamentary capacity.
Lord Templeman's Will was professionally prepared, and his solicitor recorded that he had no concerns about his client's capacity. The Golden Rule was, however, not followed. This is "that the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings". The family sought to argue the fact that Lord Templeman had not ensured his own rule was followed, when he made his new will at age 88, was evidence of his own lack of capacity.
This was given short shrift by the Judge who confirmed that a failure to follow the rule is not automatic evidence of a lack of capacity and that people who are able to give advice to others do not always need to follow it themselves, particularly in cases where they do not consider that they need to.
This case is also of interest to professional practitioners because of the personalities involved. Contentious probate disputes, by their very nature, are emotionally charged and can escalate, often beyond proportion to the value in the estate. Lord Templeman was an eminent and distinguished member of the legal community, and his son who brought the dispute was also a retired barrister. This goes to show that, even in legally minded families, disputes can and do arise.
Clitheroe v Bond [2020] EWHC 1185 (Ch)
Jean Clitheroe had three children, Debra, Susan and John. In 2009, Debra died of cancer. Jean was deeply affected by Debra's illness and death and, "took to her bed" on Debra's death and remained bedridden until her death in 2017.
Jean made two wills in similar terms, one in 2010 and another in 2013 and, in both, John inherited the residuary estate. Susan did not receive any significant benefit under the terms of either of these wills. The reason that Jean gave to her solicitor for this decision was that she considered Susan to be a shopaholic and a spendthrift and she felt she would squander her inheritance.
Susan sought to claim her mother lacked testamentary capacity as she was suffering from a complex grief reaction due to Debra's illness and untimely death in 2009 causing her to form insane delusions regarding Susan and otherwise poisoning her mind against her.
The court applied the principle recognised in Key v Key [2010] that an affective disorder, such as a complex grief reaction, can impair a person's capacity. The court also considered the meaning of an insane delusion in relation to the test laid down in Banks v Goodfellow. The court held that the 2010 and 2013 Wills were invalid on the basis of a lack of testamentary capacity and that Jean had therefore died intestate. This meant that Jean's estate would be equally divided between John and Susan as her two surviving children.
This is an interesting case for both contentious probate solicitors and private client solicitors as a reminder of the importance of their evidence.
In this case, the will drafting solicitor had not attempted to take instructions from Jean in person, and John had been involved throughout the process and knew of the content of the wills, and no professional opinion had been obtained as to capacity. The courts were critical. Practitioners have to be particularly careful when clients have recently suffered a bereavement and err on the side of caution and obtain an opinion about capacity if there is any doubt whatsoever or where potentially contentious instructions are given.
The validity of a will - forgery
In 2020, there were two forgery cases in the context of will validity. Contested will claims on the grounds of forgery are rare and unusual.
Wrangle v Brunt [2020] EWHC 1784 (Ch)
This case hit the headlines in the summer because of the office cat's apparent discovery of a will.
Dean Brunt died in 2007. His mother, Marlene Brunt, applied for Letters of Administration on the basis he died intestate. Marlene did not mention this to her sister and brother-in-law, Valerie and Winston (known as Bob) Wrangle, who had been heavily involved in Dean's life. Family relations started to break down over the years. When Bob found out that the estate had been administered based on an intestacy, he asserted there was, in fact, a will.
However, it was not until 12 June 2018 when a copy of the apparent will of Dean, dated 2 March 1999, was discovered (allegedly through a cat in the office knocking over a pile of papers) that the matter came to a head. A claim was issued by Bob a few days later seeking an order for the Letters of Administration to be revoked in favour of this will.
Marlene disputed Bob's claim, arguing that the will was not valid on the basis it was a forgery. In turn, Bob also asserted Marlene had stolen or destroyed the original. With such serious accusations from both parties, much of the case had to turn on the probability of events and the credibility of the witnesses.
The difficulty for Bob was that Dean's supposed will had been drafted, and signed as an attorney, by an individual named Howard Day. Howard was not a qualified solicitor, although he often let people believe otherwise. In 2003, Howard was convicted of fraud, for a matter unrelated to this, but it affected his credibility. Therefore, not only had Dean's apparent will only surfaced a decade after it was supposedly prepared, but the individual involved in its preparation was known for dishonesty.
Despite that, however, Master Teverson ruled in favour of Bob and ordered for the revocation of the Letters of Administration. This was mainly because Bob produced multiple, and, importantly, independent, witnesses to attest to the fact that Dean had made a will before his death, and the Judge found him to be believable in his own testimony whereas, on the other hand, the Judge was unpersuaded by the evidence of Marlene Brunt. He was convinced that the will presented was not a forgery (a reminder that forgery requires the highest standard of proof being beyond a reasonable doubt). Therefore, the Letters of Administration had to be revoked for the will to take effect.
The judgement also attracted attention because of the decision on the costs. Bob, being successful in securing the will's validity, proposed that the status quo of "costs follow the event" was observed (i.e. the loser pays the winner's costs), but Marlene proposed alternative costs on the basis of the exceptions which apply to the general rule in the context of probate claims (as per Spiers v English [1907] P 122) which are as follows:
- Where the person who made the will, or persons interested in the residue, are the real cause of the litigation, then the costs can be taken from the estate; and
- If the circumstances lead to a reasonable investigation, then each party may be responsible for their own costs.
Master Teverson was persuaded to rely on the first of the two exceptions due to the particularly peculiar nature of this case and Master Teverson being reluctant to burden the defendants with high costs given the fact the case had largely been decided on an inference (as referenced above).
However, what appears to have been the real clincher for his decision was the huge question mark over much of the conduct of Howard, who was described as a "run[ning] through this case like a stick of rock". In a nutshell, Master Teverson held Howard, and thus Dean, responsible – Howard's actions being an extension of Dean's initial actions in instructing him. Therefore, however, farfetched some may see this reasoning, the deceased could arguably be considered to be the true cause of the litigation.
Face v Cunningham [2020] EWHC 3119 (Ch)
One of the last cases to be reported on in 2020 was another forgery case involving the late Donald Charles Face's estate. Donald had three children, Rebecca, Rowena and Richard. Rebecca claimed to propound an alleged lost will of her late father dated September 2017. Rowena and Richard contended it was a forgery and their father had died intestate.
The claim was dismissed as being totally without merit.
The Judge was certain the will was a fabricated document, and the case has been referred to the Crown Prosecution Service. The Judge was also critical of Rebecca's conduct in acting as a litigant in person in this matter, describing navigating her 4,500-page bundle as 'a complete nightmare'. He ordered the costs should follow the event (which means the loser pays the winner’s costs), but because of Rebecca's conduct, he held they should be assessed on the indemnity basis, to be retained out of her share of the estate on intestacy.
Forfeiture
Also, unusually in 2020, there were two cases on forfeiture arising within the space of a couple of months of each other back in the Spring.
The well-established forfeiture rule is a matter of clear public policy and provides that if a person unlawfully kills another, they cannot inherit from their estate.
Section 2 of the Forfeiture Act 1982, allows for the rule to be modified or excluded in certain circumstances if the court is satisfied "having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the court to be material, the justice of the case requires the effect of the rule to be so modified…"
Last year in the case of Ninian v Findlay & Ors [2019] EWCH 297 (Ch), section 2 was used to exclude the effect of the rule in an assisted suicide case.
Amos v Mancini 2020 EWHC 1063 Ch
In April 2020 we saw the case of Amos v Mancini in which a 74-year-old woman successfully argued that the forfeiture rule should be excluded following her causing the death of her husband by careless driving (in respect of which she pleaded guilty and received a suspended prison sentence).
The Judge held that whilst her offence amounted to unlawful killing for the purposes of the 1982 Act, it was not deliberate or intentional, so depriving her of her inheritance would be 'significantly out of proportion' to her culpability.
Challen v Challen [2020] EWHC 1330 (Ch)
Subsequently, in May 2020, Sally Challen was also successful in her application for relief from forfeiture. She had been convicted of her husband's murder in 2010. This was quashed by the Court of Appeal in 2019. She received a conviction for manslaughter by reason of diminished responsibility due to her husband's abusive and coercive behaviour during their 40-year marriage.
It was held that the deceased 'undoubtedly contributed significantly to the circumstances in which he died' and 'without his appalling behaviour over so many years, the claimant would not have killed him', and so the circumstances justified modification of the forfeiture rule, and Ms Challen was permitted to inherit her late husband's estate.
Presumption of Death
Johnson v No named defendant [2020] EWHC 207 (Ch)
In an application for a declaration of presumed death under the Presumption of Death Act 2013 the court is required to consider the effect of Section 2(3) of the Presumption of Death Act which provides that if the court is satisfied that the missing person has died, it must include in the declaration a finding as to the date and time of the missing person's death and
"where the court is uncertain at which moment during a period the missing person died, the finding must be that the missing person is presumed to have died at the end of that period."
The precise date and time at which a person is declared to have died could have a significant impact on the devolution of a person's estate, as well as other ancillary matters such as the liability of pension providers to pay pensions, or personal representatives' liability to repay pension payments that were never due.
In this case, the missing person (who was vulnerable as he had early-stage dementia) and his civil partner owned a property as joint tenants at the time of his disappearance. The civil partner severed the joint tenancy five years later. The timing of the presumption of death, therefore dictated the beneficiaries of the property.
If his death had been determined to be at a time closer to his disappearance (and the Judge considered that it was more likely than not that a vulnerable person would have died at an earlier stage) then the civil partner would have inherited by survivorship; but, at the time of the hearing, the share had been severed and so fell into the missing person's estate.
The Judge held that he could not determine at which point exactly the person had died albeit he was confident he had died, so that meant that the only available conclusion was that he died when the presumption of death was granted, making the date and time of the presumed death, in this case, 11.30 am on 5 February 2020. He commented: "I do not regard this as according with common sense. But in my judgement, it at least accords with what the law requires of me."
The case highlights this practical difficulty in applying the legislation and suggests that it should be reconsidered to enable courts to give a more realistic determination of likely time of death.
Developments in the Inheritance Act - costs
success fees and conditional fee agreements ('CFAs')
Turning full circle now and back now to developments in the Inheritance Act we had two interesting decisions on the recoverability of success fees payable under 'CFAs' which are commonly referred to as being 'no win no fee agreements'.
People in financial need would often not be able to afford to fund their inheritance dispute case without their solicitor offering a CFA. Still, for solicitors to afford to provide them, they need to charge a success fee (so the fees they recover on the cases where they are successful are higher to balance against those that are not successful and are, therefore, not paid).
On the one hand, the success fee is a financial liability of the person seeking to bring a claim, which if not taken into account could significantly reduce the value of the award they receive, which is based on a careful calculation of their financial need. On the other hand, as a matter of public policy, in other forms of litigation success fees are not recoverable.
The cases of Bullock v Denton and Re H, heard within a matter of days of each other back in the Spring of 2020, addressed this issue and both awarded the successful applicants part of their success fees. The decisions have sparked controversy, and no doubt this issue will attract further consideration of the judiciary.
Denton v Bullock
This is an unreported decision of His Honour Judge Gosnell sitting at Leeds County Court.
Yvonne Bullock issued a claim against her partner Simon Denton's estate with whom she had been cohabiting for around four years. The sole beneficiary of his estate, worth some £2M, was his brother. He disputed the relationship between them, saying that she was merely his housekeeper.
In relation to the cohabitation criteria, a particular point of interest is that of the unusual relationship and living arrangements that existed between Ms Bullock and Mr Denton, in so far as there was a period during which they did not live together. To qualify as a cohabitee in accordance with the Inheritance Act, it is necessary for a person to have lived with the deceased for two years immediately before the deceased's death, albeit there is case law which establishes that temporary absence can be ignored (see Gully v Dix [2014] 1 WLR 1399).
Having considered the evidence, his Honour Judge Gosnell was satisfied that the relationship had continued throughout the whole period as Ms Bullock had claimed and that she was eligible accordingly.
Ms Bullock was awarded a life interest of £140,000 from which she could buy a property and a cash sum of £70,000 to fund the costs associated with moving and buying a car and white goods and discharging debt which included a proportion of her success fee.
Re H (Deceased) [2020] EWHC 1134 (Fam)
This was a successful adult child claimant, who was successful despite her being estranged from her father (the deceased) and having had no financial assistance from him for several years before his death, and him having left his estate to his elderly and disabled spouse.
The reason was that daughter was suffering from a long-term psychiatric illness which meant she was unable to work. Her income from state benefit provision was insufficient to support both herself and her two minor children.
The net estate was valued at £554,000. Her overall award equated to broadly a quarter of the estate and the Judge held it was appropriate to consider her success fee as part of the needs, awarding her half of the amount she claimed for it.
