Full Inheritance Dispute Guide

A Will can be held to be invalid if it can be established that a loved one was subject to undue influence at the time the Will was executed.

Undue influence takes the form of unlawful or excessive pressure or manipulation exerted by a third party over the testator. The test for undue influence is fairly strict and requires coercion beyond the normal realm of influence or persuasion such to cause the testator’s own volition, discretion and judgement to be overborne.

Undue influence can take many forms from physical violence and verbal bullying to financial control or ransom or wearing down a vulnerable and frail testator (by reference to age, poor physical health and emotional fragility) in such a way as to induce that person into acquiescing or agreeing to anything for the sake of quietness and may arise as a consequence of a cumulative drip effect of conduct that sapped the will of the deceased.

Your loved one may have been ill and made substantial changes to their Will whilst they were in a vulnerable state and more susceptible to such influence. These changes could be such that someone who was previously receiving a small part of the estate would receive a windfall under the new Will or the exclusion of someone you believe the deceased would have wanted to provide for in their Will.

For a claim of undue influence to be successful you will need to satisfy the Court that there is no other reasonable explanation for the Will having been changed in the way it has been.

Whilst the involvement of a solicitor in the preparation of the Will is likely to reduce the likelihood that undue influence has been at play it is not an absolute bar thereto. It may be that the level of coercion and control was such that it prevailed and operated as at the time the deceased provided instructions to their legal representative.

Whether or not the conduct complained of is sufficient to establish undue influence varies from case to case. Our firm will be able to assist you in investigating the relevant circumstances surrounding the making of your loved one’s Will and advise as to the merits of possible claims and prospects of success.

Similar to undue influence a Will can be held to be invalid if fraudulent calumny is held to have been perpetrated by a beneficiary of a Will who makes untrue comments to the testator about the character etc. of another potential beneficiary with the intention and for the purpose of causing the testator to exclude or reduce that potential beneficiary’s entitlement under the Will and conversely benefit the person making the false comments.

The person making the comments must know that they are untrue or be reckless as to whether they are true or not.

Fraudulent calumny concerns to poisoning of the testator’s mind against a party who would otherwise be a natural beneficiary of the testator’s estate through casting dishonest aspersions on his character.

The significant difference between fraudulent calumny is that undue influence requires the testator to have been forcibly coerced by another into changing their Will by their free will being overborne whereas fraudulent calumny is a more subtle form of influence. Ultimately the testator will have changed their will by their own free choice but as a result of a change of perception of a potential beneficiary due to the untrue comments made about them.

If the Will has been professionally drafted the Will file may record the reasons for the excluded or reduced inheritance within the Will which may ultimately be uncovered to be false accusations, indicating fraudulent calumny to have existed.

You may suspect that your loved one did not have the mental capacity to make decisions as to the distribution of their estate at the time their Will was executed. In such circumstances, the Will may be found by the Court to be invalid due to lack of capacity.

In order for a Will to be valid, at the time of execution the deceased must have:

• Been able to understand what they are doing in respect of making a testamentary disposition (the capacity to understand is not to be equated to a test of memory);
• Been able to understand the extent of the property that they are disposing of under their Will (i.e. the value and nature of assets within their estate and those as would pass out of it by reason of, inter alia, the right of survivorship);
• Be able to comprehend and appreciate the claims to which they ought to give effect (including those which might otherwise give rise to a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) as discussed further below);
• Not have been affected by a disorder that would affect their decision making

Due to more people living longer and experiencing brain diseases such as Alzheimer’s (and there being a greater recognition and awareness of such conditions throughout society) the Courts have seen a significant rise in contentious probate claims being disputed on grounds of capacity.

There is a rebuttable presumption of capacity if a Will has been duly executed and attested. Accordingly, the burden of proof lies with the party disputing the Will to prove that the deceased did not have mental capacity at the time they signed the Will. If such evidence of mental incapacity is produced the party propounding the Will must establish that the deceased was of sound mind, memory and understanding at the time of execution. Accordingly, when facing a dispute on grounds of capacity you should be prepared to obtain and disclose copies of the deceased’s medical records and instruct an expert to report on the issue of the deceased’s capacity at the time of execution of the Will all of which are aspects that we can deal with on your behalf.

If the will has been correctly executed and the deceased had capacity this gives rise to a proper inference that the deceased had knowledge of the content of the Will and approved them.

If your loved one was deaf, dumb or blind affirmative evidence is required to demonstrate that suitable steps were taken to ensure they had precise knowledge of the contents of the Will and had approved the same. If for example the deceased was deaf and the Will was not read out loud to them at the time of execution it is likely to be invalid.

Similarly, in certain circumstances that “excite the suspicion of the court” (such as where a party prepares a Will under which they benefit) affirmative proof of knowledge and approval will be required. In order for the Court to pronounce such a Will to be valid the suspicion must be removed and the party seeking to prove the Will must demonstrate that the deceased fully understood the content of the Will and how it would operate.

Where there is insufficient evidence to prove undue influence but the Will has been executed in suspicious circumstances the Court may still refuse to prove the Will on the basis that the deceased lacked knowledge and approval of the content. Accordingly, it may be appropriate for this ground to be pursued further or in the alternative to an undue influence claim.

You may have received a copy of your loved one’s Will and suspect that the Will has not been correctly signed or witnessed.

A valid Will must be in writing and generally signed at the end by the testator (or by someone else in their presence, under their direction as recorded thereon) in the simultaneous presence of two or more witnesses. Additionally, at the time of execution of the Will, the testator must intend to make “a revocable ambulatory disposition of the maker’s property which is to take effect on death”.

Accordingly, the validity of a Will may be disputed on the basis that these requirements have not been met i.e. the purported signature of the testator is a forgery or the witness(es) were not present at the time the testator signed the Will. In cases like this, the validity of the Will may be open to challenge on the grounds of lack of due execution.

Contentious probate claims on the basis of lack of due execution are on the rise due to the increase in ‘DIY’ Wills and issues surrounding the remote execution of Wills during the Covid 19 Pandemic.

Stemming from the concept of want of due execution your loved one’s Will would be held to be invalid if any of the signatures thereon were forgeries.

It may also be possible to dispute a Will on the grounds that it has been made as a consequence of fraud by way of breach of trust or fiduciary duty, fraudulent misrepresentation or deceit such as inducing the deceased into believing they were signing something other than a Will. Such claims will be subject to rigorous scrutiny and any pleading must be supported by strong evidence in support of the allegations being made. Consequently, such cases are less common due to the level of evidence required by the Court and alternative grounds often being available in such circumstances.

Consideration also needs to be given as to whether the testamentary instrument has been revoked by any of the following:

• A subsequent marriage or civil partnership of the deceased (unless it appears they were expecting to be married to a particular person and that they intended that a disposition in the Will should not be revoked by the legal union);
• Due execution of a later Will or codicil;
• Due execution of a declaration of intention to revoke;
• Destruction of the Will by the deceased or by some person in their presence and by their instruction with the intention of revoking the same.

In such circumstances a case against proving a Will may be pursued.

A person cannot benefit under a Will if they have unlawfully killed the deceased or otherwise unlawfully procured their death.

Accordingly, in extreme circumstances, a Will may fail if the deceased’s death has been brought about by a beneficiary. Save where a beneficiary has been convicted of murder the Court has the power to modify this rule having regard to the relevant conduct and circumstances. Should you have suspicions as to any such circumstances the same should be reported to the police without delay.

You may believe that your loved one’s Will does not accurately give effect to their intentions and instructions as provided to the Will writer. This could be due to a clerical error made in the process of recording the intended words of the testator and the drafting or transcription of his Will or that the Will writer simply failed to understand your loved one’s instructions or misunderstood them.

A genuine mistake must have occurred at the time the Will was written rather than the situation being that a disappointed beneficiary will not inherit under the Will as they had expected (the latter of which may instead give rise to a claim under the Inheritance (Provision for Family and Dependants) Act 1975 as discussed further below).

In such circumstances, it may be possible to seek rectification of the Will under section 20 of the Administration of Justice Act 1982.

In order to succeed on a claim for rectification on the basis of a failure to understand the deceased’s intentions you would need to be able to prove your loved one’s actual intentions, on what basis it is said the Will does not reflect them and that the party who drafted the Will misunderstood your loved one’s intentions so that the Will as executed did not reflect their actual wishes. There must have been a misunderstanding as to the deceased’s intentions and not just that the Will has been prepared incorrectly, the latter of which may give rise to a professional negligence claim as discussed further below.

Again one of the first steps to take when considering any such claim is to obtain a copy of the Will file from the Will writer however the quality and extent of available records may be dependent on whether the Will was prepared by a regulated Will writer.

If rectification is granted the Will would then be treated as including the deceased’s true intentions with the estate being administered in accordance with these wishes.

If you believe that the deceased’s estate is not being properly administered it may be possible to apply to the Court seeking that it exercise its discretion and remove or substitute one or more of the personal representatives pursuant to section 50 of the Administration of Justice Act 1985. Such a claim may be brought by a beneficiary or existing personal representative.

If you wish to put forward a substitute personal representative you will need to demonstrate their suitability and consent to the appointment.

Personal representatives often oppose any such application made against them. Accordingly, there must be clear and compelling reasons warranting their removal.

Probate is often administered by lay persons who are often themselves beneficiaries of the estate or have close personal connections to the persons involved. Consequently, emotions and relationships can become frayed should disagreements arise in respect of the administration of the estate. Crucially however mere friction, hostility and animosity between personal representatives and beneficiaries does not constitute sufficient grounds for removal of a personal representative (particularly in respect of the appointment of executors chosen by the deceased during their lifetime as removal will constitute an interference with their wishes). The conduct complained of must be such that it is adversely affecting the proper administration of the estate or the welfare of the beneficiaries.

Contact us today if you wish to discuss the extent and nature of the conduct complained of and the likelihood of the Court ordering that a personal representative be removed on the basis thereof.

Subject to applicable limitation periods it may be possible to bring a claim in negligence against a personal representative in respect of any losses incurred by the estate as a consequence of a breach of the duty of care that they owe to, inter alia, the beneficiaries of the estate (a higher standard being expected of a professional executor to that of a lay executor).

If you believe that a personal representative has failed to exercise reasonable skill and care in the exercise of their duties which may include failing to safeguard assets or acting without undue delay it may be possible to bring a claim against them seeking that they make good any losses incurred by the estate as a consequence of their negligence from their own resources.

Where there has been active dishonesty on the part of the personal representative it may also be possible to bring a claim against them seeking that account be made to the estate for any profit derived from an abuse of their fiduciary duties.

Such claims often surround real property that appears on the face of it to have been owned by the deceased with another person as joint tenants. In such circumstances, the default position is that the right of survivorship will apply meaning that when one owner dies the whole of the property passes to the surviving owner.

Where ownership of the property has been transferred from the deceased’s sole name to their joint names with another party as joint tenants grounds to set aside the transaction by reason of undue influence may exist. However, it must be noted that the threshold to successfully challenge the legitimacy of such a property transaction is high and if unsuccessful is likely to result in an adverse costs consequence.

A testamentary disposition cannot sever a joint tenancy because death extinguishes the joint interest. However, even where there was no written Notice of Severance of a joint tenancy during the deceased’s lifetime it may be that the tenancy was otherwise converted into a tenancy in common and the right of survivorship extinguished prior to the deceased’s death by mutual agreement or an overt course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. If you are able to establish the same the deceased’s interest in the property will form part of their estate.

Alternatively, it may be that actions of the deceased during their lifetime gave rise to an estoppel or trust in respect of solely owned property or their share of property held as tenants in common (or joint tenants with the knowledge of the other legal owner), that may otherwise form part of their estate, so as to have created an interest to you therein so as to give rise to a valid claim in respect of the asset against the surviving owner or the deceased’s estate. Such a trust may arise not only in respect of real property but money held in joint bank accounts.

In respect of real property, it may be open to you to pursue, inter alia, a constructive trust claim in relation to real property under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) on the basis that there had been a common intention between you and the deceased during their lifetime that you had a beneficial interest in the property.

In advancing such a claim you would need to demonstrate that the deceased (and joint owner if applicable) induced you into believing that you would be entitled to a share in the ownership of the property through express agreement or contribution to the acquisition or retention or improvement of the property, that in reliance thereon you acted to your detriment (i.e. through the financial contribution itself which was not made for some other purpose such as payment in consideration of being permitted to occupy the property for any period).

Similarly, a claim may arise in such circumstances under the doctrine of proprietary estoppel if the deceased told you that a particular asset would be left to you and in reliance upon that promise you acted to your determinant so that it would now be unconscionable for you to be denied an interest in the property.

The deceased may have held joint bank accounts with a partner, spouse or other relative.

In such circumstances, the default position is that the balance of the monies held in the account (or any deficit) at the time of the deceased’s death will pass to the surviving joint account holder/s under the survivorship rule, outside of their estate and without the need for probate. In the first instance, it would therefore be irrelevant if the deceased had a Will gifting everything between all the children equally.

However, in some cases, it is possible to challenge the survivorship rule and successfully bring a claim that the monies (or part of the monies) held therein were held on trust for the deceased as at the date of their death (by reason of, inter alia, intention) and accordingly form part of their estate to be administered in accordance with the terms of their Will or the rules of intestacy.

You may find yourself facing a dispute of this nature if it is discovered on the death of a parent that they added a sibling to one or more of their bank accounts during their lifetime in circumstances where the latter made no (or disproportionate) deposits therein. A claim against a joint bank account will fail if the additional party can establish that the funds held therein were gifted to them during the deceased’s lifetime with the intention of being held on a joint basis so as to trigger the rule of survivorship on death. The fact that the addition of the account holder made payment of bills etc. for convenience will not of itself displace the doctrine of survivorship, as this may only constitute one reason and purpose for the joint account.

The bank’s own terms and conditions as govern the operation of the bank account will also be considered by the Court in determining a dispute of this nature and may carry significant weight.

However, where one account holder alone puts money into joint names it may be possible to establish a resulting trust in favour of the contributing party (in this instance the deceased which would mean the monies form part of their estate). The joint account holder may be able to rebut the presumption that such a trust exists if they can demonstrate the deceased had intended to transfer the beneficial interest in the fund. In such circumstances, the burden of proof lies with the party asserting that the rule of survivorship ought to apply. Consideration must be given as to whether the deceased intended the monies to remain theirs during their lifetime to spend as they wished and how they intended them to pass on their death.

Please do not hesitate to contact us if you require any assistance in relation to this complex area of law.

An assessment under the Inheritance Act involves an objective assessment asking “has the deceased’s estate made reasonable financial provision for the class of the potential applicant by the standard applicable to that applicant?”.

If you were the spouse or civil partner of the deceased you may seek financial provision as it would be reasonable in all the circumstances of the case for you to receive, whether or not that provision is required for your maintenance.

If you fall into any other category of applicant you may be able to bring a claim seeking such financial provision as it would be reasonable in all the circumstances of the case for you to receive for your maintenance.

Maintenance is not defined by the Inheritance Act however the Courts have construed the relevant standard by reference to what it would be reasonable for an Applicant to live on at neither a luxurious nor poverty-stricken level.

A claim under the Inheritance Act must be brought within 6 months of probate being issued (albeit it may be possible for you to bring an application out of time with the permission of the Court depending on the circumstances of your case).

We can assist you in complying with the Practice Direction-Pre-Action Conduct and Protocols in an effort to, inter alia, agree on a settlement with the other interested parties without the issuing of proceedings.

In considering bringing an Inheritance Act claim you will need to be prepared to provide financial disclosure to the other parties (and the Court in the event of proceedings) in respect of your finances as the burden falls to you to demonstrate that you will not receive reasonable financial provision if an Order is not made.

The factors that the Court will take into account when assessing your claim under the Inheritance Act are set out in section 3 thereof and include:

The financial resources and financial needs that you have or are likely to have in the foreseeable future;

• The financial resources and financial needs of and any obligations and responsibilities which the deceased had towards any other applicant or beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
• The size and nature of the net estate of the deceased.
• Any physical or mental disability of any applicant or beneficiary of the deceased’s estate.
• Any other matter, including the conduct of yourself or any other person, which in the circumstances of the case the court may consider relevant as may include:
  • The manner in which you are being or might expect to be educated or trained;
  • Your age and the duration of your relationship with the deceased; and/or,
  • The length of time, basis and extent on which the deceased maintained you;
  • The liability of any other person to maintain you.

We are able to assist you in conducting a balancing exercise as to the various competing factors in the circumstances of your case and advise as to the merits and prospects of any possible claim under the Inheritance Act.