2020-02-17
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The numbers of contested probate cases continue to rise

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Posted by Laura Abbott on 16 October 2019

Laura Abbott Associate

The final paragraph of Master Arkush’ judgement in the recent case of Rea v Rea (2019 EWHC 2434 Ch) serves as a salutary reminder for those wishing to seek to challenge the validity of a will of the difficulties they will face. 

On one level it is understandable that the defendants feel disappointed, upset and resentful that they have not benefited from their mother's will. In my judgment they have allowed these emotions to override a more considered reflection that Mrs Rea had reason to benefit Rita for all the care that Rita had given her over six years and more as her principal carer. But... it is not my task to decide whether the 2015 Will was justified or fair. I am only required to decide if it is valid… I find that it is valid, and that it should be admitted to probate.

Master Arkush

The case concerns a will made by Anna Rea in 2015 leaving her estate to her daughter Rita.  She died the following year aged 85.  Rita’s three brothers challenged the validity of the will on an array of grounds including lack of testamentary capacity, lack of knowledge and approval, undue influence and fraudulent calumny.  The court found that the will was valid and was simply what Mrs Rea wanted; which was just not to the liking of her sons.   All the children were adults and the estate was valued at circa £750,000.  Mrs Rea had included an express clause in her will explaining her disinheritance of her sons which read:

I DECLARE that my sons do not help with my care and there has been numerous calls from me but they are not engaging with any help or assistance. My sons have not taken care of me and my daughter Rita Rea has been my sole carer for many years. Hence should any of my sons challenge my estate I wish my executors to defend any such claim as they are not dependent on me and I do not wish for them to share in my estate save what I have stated in this Will.

Mrs Rea

The care provided by Rita was not disputed by her brothers, whose contact with the deceased during lifetime was limited and relationship with Rita was not good, even before their mother’s death.

As is the current trend in these sorts of cases, the court gave great weight to the evidence of the solicitor who prepared the will and the deceased’s GP who had provided a contemporaneous capacity assessment as part of the preparation of the will, and both gave evidence in support of its validity; both in terms of her having the requisite capacity and it being made of her own volition and her understanding its terms.  Recent case law has held it to be a ‘very strong thing’ to overturn a will which has been prepared by an independent experienced solicitor.  The brothers had no other evidence, save for their own interpretation (and in the most part Master Arkush found their evidence incredible), to counter it. 

The numbers of contested probate cases continue to rise, but this case highlights how difficult they are to pursue and it has to be remembered that in English law the principle of testamentary freedom overrides so, as Master Arkush set out, notwithstanding a disappointed beneficiary’s dissatisfaction there has to be meritorious grounds and strong evidence to run a successful claim, particularly where the will has been professionally prepared.

About the author

Laura Abbott

Associate

Laura specialises in all aspects of contentious probate work and disputed estates.

Laura Abbott

Laura specialises in all aspects of contentious probate work and disputed estates.

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