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Briefing Note Wills and Contentious Probate


The fictional case of Jarndyce v Jarndyce in Charles Dickens Bleak House concerned a substantial inheritance which by the time the story reached its close had been eaten away I n legal costs. A recent judgment of the Court of Appeal drew from their Lordships a comparison with that fictional case a lbeit the estate of the deceased with which they were concerned had been reduced to dust in a far shorter timescale.

The case is worthy of consideration simply because it brings home to us all the need for good legal advice and assistance when a will is made and if there are problems good advice on challenging validity or resisting such a challenge.

Although testamentary capacity was in issue the main point which clients may beunaware of is that if the circumstances in which the will is made are such that suspicion may arise then the will may well be challenged by someone is appointed by its terms.

Mrs Burgess made a will in 1996 leaving her estate equally to her three adult children. In 2007 she made a new will leaving her estate to her two daughters but excluding her far wealthier son. The elder daughter Julia, made an appointment for her mother to change her will and assisted her with giving instructions to the solicitor regarding its terms. The son Peter and younger daughter Libby knew nothing of the new will. They were all close to their mother and she loved them equally.

Following Mrs Burgess’s death Peter and Libby challenged the validity of the will on the grounds that their mother lacked testamentary capacity and did not know or approve of its contents.

The starting point which is worth repeating from the judgment is as follows:

“The freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death.”

The appeal focused on the second of the two legal challenges being the contention that the deceased lacked knowledge and approval of the contents of her new will.

The questions which the court had to ask itself and the manner in which it replied were as follows:

  1. Do the circumstances of the 2007 Will arouse the suspicions of the court as to whether its contents represent the wishes and intentions of the Deceased as known to and approved by her? Yes
  2. Has scrutiny of those circumstances by the Court dispelled those suspicions? No

The Judge at the County Court trial made findings regarding the family relationships and the deceased’s health, which was poor. There was at the relevant time a rift developing between Julia and Peter relating to their mother’s financial affairs.

Nevertheless it was Mrs Burgess who decided she wished to change her will. The reason she gave to Julia was to give directions for her burial and the funeral service. An appointment was made by Julia with a local firm of solicitors. A manuscript attendance note was made but crucially the solicitor had allowed Julia to remain in the room and had received information from her rather than from his client at the meeting. He accepted that he had not carried out an assessment of his client’s mental capacity nor had he asked to see her alone.

Mrs Burgess than suffered a nasty fall before she executed her will at a second meeting with her solicitor. She had not in the meantime been sent a draft with a letter of explanation as to its terms and once again Julia remained in the room. The draft was read out to her and the solicitor explained its meaning. It wrongly stated, from information provided by Julia, that Peter was being excluded because of provision already made for him. The will was duly executed.

Mrs Burgess died in 2009 leaving an estate of some £200,000. Evidence was given by 27 witnesses and the trial took place over several days. Negotiations to avoid a trial had been attempted but had failed. Although the outcome at trial and upheld on appeal was that the 2007 Will was invalid and the 1996 Will would therefore apply there was nothing left to pass to any one of the beneficiaries and worse still the siblings relationships with one another had been destroyed, perhaps forever.

The dispute resolution team here at Gregsons recently acted for a daughter who had been left her mother’s entire estate and which cut out her two brothers. The brothers challenged the will but were unsuccessful because the correct procedures had been taken by the solicitor when the will was drawn. That challenge was seen off at an early stage before sign significant cost had been incurred and so the mother’s wishes were fulfilled.

We also acted for a son who was left his mother’s entire estate and his sister was left nothing. The son had himself drawn up his mother’s will quite innocently, but, in circumstance which gave rise to suspicions and so a great deal of evidence had to be obtained to prove that the mother was not lacking in mental capacity and the will reflected her true wishes. Two years on and we were successful in dispelling those suspicions but at significant cost to the losing sister who paid her brother a very large sum in legal costs. Sadly it seems unlikely that brother and sister, the only surviving family members, will ever speak again.

The moral of the story is to make a will with the help and guidance of an experienced practitioner who takes the time and trouble to ensure that the procedures are correctly followed and recorded particularly where an elderly and possibly unwell client is concerned. It may take a little more time and cost a little more but in the long run that investment could save the destruction of the estate by legal costs and perhaps more importantly the relationships members of your family have with one another.

We at Gregsons offer an experienced and knowledgeable will drafting service.

Our solicitors are recognised experts and members of the Society of Trust and Estate Practitioners.  We also have experienced contentious probate practitioners who can help if a dispute arises.

If you would like to discuss any of the issues raised in this briefing note please contact us by telephone or by email.



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This document contains general advice and comment only and specific legal advice must be taken before reliance is placed upon it in any particular circumstances.



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