Divide and conquer

Contentious probate practitioners regularly see adult children who complain that they have been excluded completely or have not received sufficient inheritance from their parent or step-parent’s will. The adult child is often alarmed to discover that, having lost one parent, the second parent to die leaves their estate (including that inherited from the first parent) to a stranger or to another family member. The grown-up child, unaware they would not benefit and with no apparent explanation for their exclusion, seeks advice on their lack of inheritance in ?a state of disbelief.

Hunter gatherer

As well as obtaining a full copy of the deceased parent’s purported last will and making enquiries about the existence of any later (or previous) wills, investigations are carried out to ascertain if the aggrieved adult child has any legal claim. If the will in question is a significant departure from a previous settled pattern of testamentary dispositions favouring the adult child, then thought needs to be given as to whether lack of testamentary capacity is an issue, particularly if the parent was suffering from a serious or mental illness.

If the will was prepared by a solicitor, then a Larke v Nugus request should be made and the adult child advised on the contents of the will file (and the deceased’s medical notes from around the time the will in question was made). A claim under section 1(1)(c) of the Inheritance (Provision for Family and Dependants) Act 1975 needs to be considered, as well as other claims as a result of obligations professed or implicit in the deceased parent’s conduct, for example any promises made by the deceased. As family arrangements can be complex, and as each case turns on its own particular facts, it is crucial that practitioners gather full information.
The importance of this was illustrated in a recent case for an adult child.

An elderly gentleman in the latter stages of a terminal illness was taken by his much younger friend to visit a local solicitor to change his will in 2010. His wife had died in 2001 and he told the solicitor that he wanted to exclude his only son from his will, mainly due to an incident that had occurred several years earlier, and that he wanted to make his friend the main beneficiary. On the solicitor’s advice the gentleman decided to leave his son and three grandchildren a small share of his estate with the majority passing to his friend. The will was executed and the gentleman died a few weeks later.

Background check

The adult son sought advice on his father’s will as he could not understand why he had been left such a small share of the estate (they enjoyed a good relationship) and he was concerned that the will had been changed when his father was very ill and close to death. The son was also aggrieved that his mother’s estate, which had passed to the father under the survivorship rules, would effectively be passing to an outsider and his mother would not have wanted this to happen.

Full background information on the son’s relationship with his parents and the family dynamics was obtained and revealed that his parents had experienced matrimonial difficulties, which had resulted in the deceased gifting his wife (the son’s mother) half of the matrimonial home in 1987, which ?was then held as tenants in common.
It transpired there had been a family lunch in 1996 when his mother and father brought up the issue of their wills, which their solicitors at the time had prepared for the son to read and be aware of. His mother took the original deed of gift out of her handbag in front of everyone at the lunch and physically handed it to the son and said that she was giving it to him as she wanted her half share in the house to go to him. At the lunch the family also discussed how the son was to be the beneficiary of their estates and how they would both leave wills reflecting this agreement.
The mother only agreed to leave her estate to the deceased in her will on the understanding that if she died first he would leave their estates to the son. This was discussed and agreed between the parents in the presence of the son and other witnesses.

Question time

While the son had suspicions about the 2010 will, it was concluded that there was evidence that the deceased understood what he was doing – the solicitors’ file was very detailed and they took contemporaneous notes of the meetings and purported reasons for the son’s exclusion. The GP looking after the deceased could see no signs of mental illness and there was no medical evidence to support a case against the will.

A claim under section 1(1)(c) of the 1975 Act was not appropriate as, because of the son’s employment position and financial circumstances, it was not the type of case where the court would make a 1975 Act order in favour of ?an adult child.

It was concluded that the 2010 will was entitled to probate, but an examination of the facts revealed ?there were distinct and separate ?trust arguments.
It was argued for the son that his parents’ 1996 wills were mutual wills, or, in the alternative, there was a secret trust. When his mother handed over to the son the original deed at the family lunch in 1996, this did not pass to him her interest under that deed, but it was an important piece of evidence. Ideally, evidence about a mutual will should be in the wills themselves or in the solicitors’ will file, which was not ?the case here.
When we were threatening proceedings and in the pre-action protocol phase, we relied heavily on the son’s and the other witnesses’ evidence about the family lunch in 1996 and the corroborative evidence and inherent probabilities. The son’s arguments resulted in a settlement of his claim and he received half of the value of the matrimonial home (which was the main asset of the estate) together with the provision left for him in his father’s ?2010 will.

 

Jessica Costello is head of contentious probate at Knights Solicitors LLP and a member of ACTAPS