Contentious wills
The year has seen some interesting substantive law developments
in the disputed wills field, most notably the clarification of the
appropriate test for testamentary capacity in Re Walker, and more
recently, the reining in of the expanded doctrine of Donatio Mortis
Causa by the Court of Appeal in King v Chiltern Dog Rescue. Whilst
substantive developments are exciting and covered widely in the
legal press, it pays not to overlook interesting procedural
aspects, which can be used to bolster the litigator's toolkit.
There have been a few of note over the last six months...
Taylor v Bell, Leeds County Court, 16 February 2015
provides an unusual example of an application to vary a consent
order in relation to a 1975 Act claim. Mr Gardiner's will made
no provision for his son, Miles, who therefore applied for
reasonable provision under the 1975 Act. His application was
compromised and the consent order provided reasonable maintenance
for Miles' sixth form college and university (undergraduate and
postgraduate) education until 31 August 2014. The maximum sum
payable under the order was £210,000.
For a variety of reasons including some linked to Miles's
learning difficulties and injuries sustained in a road traffic
accident seven weeks before the consent order, Miles's
education did not progress as planned with the result that he did
not graduate from Leeds College of Music when anticipated. In
the event, he only received £112,443.21 from the estate. To
further his career prospects (he was a talented singer and hoped to
become an opera singer), he sought a variation of the consent order
to fund the final year of the course at Leeds and a two year post
graduate course at the Royal College of Music or the Guildhall
School of Music in London. He estimated his expenses likely to be
approximately £90,000.
Counsel for the executors cited various authorities to support his
submission that there is a heavy onus and on Miles and additional
hurdles for him to overcome before the Judge could set aside the
order.
The Judge noted that Miles was not seeking to set aside the order
but rather to vary the periodical payments under the express power
in section 6 of the 1975 Act. Further, none of the authorities
referred to were decisions on applications to vary a periodical
payments order or in fact even decisions under the 1975 Act. As
such the Judge was not assisted by the authorities and did not
agree that Miles had to overcome specific hurdles before he could
exercise his discretion under the Act. Instead he set out what he
considered to be the important circumstances, which included, inter
alia: the fact that the expressed purpose of the order was to
provide maintenance for Mr Taylor until he finished his
postgraduate studies; that £210,000 had been set aside for
that purpose; and that Miles was a talented and committed singer
with financial circumstances such that financial provision is
reasonably required. One further relevant factor was that when the
executors had realised all the funds would not be used they had
distributed funds to the residuary beneficiaries, and therefore
there were only limited funds left in the estate. The Judge found
that variation would be appropriate, but limited the award to that
available. Miles was awarded his costs of litigation at litigant in
person rate. The Judge commented that the executors' costs of
£23,000 approximately were unfortunate and disproportionate
and allowed only £15,000 including VAT and disbursements from
the estate.
This case is a useful reminder of the provision to vary an order
for periodic payments under the 1975 Act, but also of the practical
reality that any victory may be phyrric where funds have already
been dissipated.
Where there is a dispute as to the validity of the deceased's
purported last will, we are used to seeing caveats entered to
prevent the distribution of the estate pending the determination of
the claim. In Williams v Seals [2014] EWHC 3708 (Ch) no
caveat had been entered and instead the claimant entered a caution
to prevent sale of property within the estate. The case provides a
useful refresher on the court's approach to vacating a
caution.
Arnold Seals made a will leaving his entire estate to Florence
Williams, a childhood friend who he had befriended again following
the death of his wife, and appointing her as sole executrix. The
principal assets in Mr Seal's estate comprise a half share in
Wallands Farm in Derbyshire (the other half held by family
members), and the entire interest in further local real estate.
Following Mr Seals' death, his three children issued a claim
seeking a share in his estate under the 1975 Act. They subsequently
indicated a will validity challenge in correspondence. The children
registered cautions at the Land Registry against Wallands Farm and
other real estate in Mr Seals' estate that was due to be
auctioned for sale so that, in practice, the property could not be
sold. Mrs Williams applied to have the cautions removed from the
register.
The court applied the approach in Nugent v Nugent [2013] EWHC
4095 (Ch). The jurisdiction of the court to order the vacation
of an entry on the register was well established in those cases
where the claim on which the entry was based had no real prospect
of success. This was not such a case. The correct test where the
claim has a real prospect of success is in three stages: to
consider (1) whether the children had a seriously arguable case
that they would succeed at trial in obtaining a proprietary
interest in the property; and if so (2) whether either or both
parties would be adequately compensated by a damages award; and if
not (3) where the balance of convenience between the parties
lies.
The Judge found that in order for the children to use the farm in
any way they would need to raise funds to purchase the other half
share. As they were of limited means there was no serious prospect
of obtaining an order for the transfer of any interest in the land
under a 1975 Act claim. There was a risk of decline in market value
of the property if a sale was delayed due to the caution. Given
their limited means, the respondents would not be able to
compensate the estate for loss suffered if they lost at trial
whereas Mrs Williams was more likely to be able to compensate the
children for loss resulting from the cancellation of the caution
were she to lose at trial. It was therefore appropriate to cancel
the caution and permit the sale to proceed.
The decision in King v King [2014] EWHC 2827 (Ch) provides
a rare example of a successful summary judgment application in the
contested wills sphere. Mr King and the appellant widow had
cohabited since the 1960s. Mr King had made a will in 1991 in which
he left his estate in its entirety to the appellant. In June 2005
Mr King made a new will dividing his estate between his two
children from a previous relationship in equal shares, and giving
the appellant the right to occupy the family home for life. Mr King
and the appellant married in September 2005, thereby revoking the
June 2005 will. Accordingly Mr King executed a new will in exactly
the same terms in September 2005.
Mr King died in 2009 and the appellant contested the validity of
the will, arguing for intestacy on the basis of want of knowledge
and approval.
Mr Ellis, a solicitor who had drafted and was one of the executors
under the September 2005 will, applied for summary judgment,
submitting that the appellant's claim had no real prospect of
success. At the summary judgment hearing the Master found in Mr
Ellis's favour, stating that the circumstances of execution of
the will and Mr Ellis's record of the deceased's
instructions created a strong presumption in favour of the will and
that the appellants' submissions had not created sufficient
suspicion as to validity to rebut the presumption. The appellant
appealed on the basis that the Master had not applied the right
test for summary judgment and was wrong in law in relation to want
of knowledge and approval – Mr Ellis had not provided
evidence sufficient to discharge his burden of proof and the
circumstances should have aroused the suspicion of the court such
that it should not be disposed of on a summary basis.
The Court of Appeal dismissed the appeal, finding that the Master
had applied the relevant test. On the question of burden of proof
the court found that, since Mr King's testamentary capacity was
not in question, so long as there were no suspicious circumstances,
Mr King's knowledge and approval could be assumed from the fact
that the will was duly signed and attested. On the question of
suspicious circumstances, the Court of Appeal accepted the
Master's findings that no suspicious circumstances arose.
Accordingly the appeal was dismissed.
In Randall v Randall [2014] EWHC 3134 (Ch) the court
considers standing to bring a contentious probate claim. Mr and Mrs
Randall were divorced in 2006. As part of the divorce proceedings
they disposed of their claims for financial provision by a consent
order providing that Mrs Randall would split any gift or
inheritance over £100,000 received from her mother, Mrs
Corrall, with Mr Randall. Mrs Corrall died leaving £100,000
to Mrs Randall and dividing the residue of the estate between her
grandchildren. Mr Randall challenged the validity of the will. Mrs
Randall argued that Mr Randall did not have standing to bring a
probate claim to contest validity given he was not a beneficiary.
The question of standing was dealt with at a preliminary
hearing.
The court found that the claimant must show he has sufficient
interest in the deceased's estate to give him legal standing to
bring a contentious probate claim. This is a substantive
requirement of the common law (rather than a procedural
requirement). The claimant argued that 'sufficient
interest' should be widely interpreted. Since a will is a
public document, there is public interest in challenging a
potentially fake will, and the broad test, such as that applied in
judicial review proceedings, should apply. The Judge found that it
was not appropriate to 'transplant' that broad approach
into the field of probate claims. Judicial review claims are
concerned with the abuse of public powers whereas probate claims
are concerned with private rights between citizens.
The court then looked at the nature of Mr Randall's right under
the consent order. The judge held that there could be no equitable
assignment of part of Mrs Randall's interest in the estate as
there was no obligation on Mrs Randall under the consent order
until receipt of the inheritance. Further the court found that Mr
Randall had no proprietary interest in the inheritance as indicated
by the fact that the amount he would receive would not benefit or
suffer with the rise and fall of any assets distributed to Mrs
Randall in specie. Instead the court found that Mr Randall was a
creditor of Mrs Randall in her personal capacity.
Finally the court considered whether a claim as creditor gives Mr
Randall an interest in the estate. The judge reviewed the
authorities and decided that, on a proper analysis, whether a
person has an interest is to be determined by reference to the
touchstones of (1) whether they are personal representatives, (2)
the grant of representation and (3) the entitlement to a
distribution of the estate. Whilst Mr Randall may be
'interested' in the estate, as a creditor he had no
interest in the estate. Thus Mr Randall had no standing to bring a
claim.
It is not uncommon for those without a direct interest to seek to
claim in relation to an estate and it is always worth considering
whether legal standing is an issue. The provisions of CPR 57.7
which requires that the claim form contains a statement of the
claimants' and defendants' interest in the estate is a
useful starting point but this case clarifies that this is in fact
a substantive law point rather than a simply procedural issue. And
so, we come full circle, back to substantive law...
First published 19 June in New Law Journal - N.L.J. 2015, 165(7657), 15-16.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.