Regular readers of this column will be aware of the importance of making a will in order to ensure that, following their death, their assets are passed on to whoever they want to benefit. In most cases that is exactly what happens; the executor appointed by the will establishes what the assets and liabilities of the deceased are and then distributes them in accordance with the wishes expressed in the will or, if there is no valid will, according to the rules on intestacy (which are directed towards the distribution of the estate to family members).

However, many readers may have become aware last year of the case of Ilott –v– Mitson, which received widespread media attention when the claimant, the estranged daughter of the deceased, succeeded in securing an order from the court giving her approximately one third of her late mother’s estate, despite her mother having excluded her from her will and having specifically expressed the wish that she should not receive anything from her approximately £500,000 estate.

Challenging the validity of wills

The Inheritance Act is not the only basis on which the validity of wills can be challenged. Mundays often advise on situations where doubts are raised as to whether a will complies with the strict legal requirements, in particular with regard to the circumstances in which it was prepared, executed and witnessed. On one occasion recently we advised on a will which turned out to have been forged.

Wills can also be found to be invalid if it can be established that the deceased did not have the requisite capacity when the will was made or if they were subjected to undue pressure or influence (usually by a beneficiary) or if they did not know and approve of the contents of the will.

Challenges of this kind need to be addressed both sensitively and through a forensic approach, using appropriate legal procedures and practices to establish the full history of the testator and the circumstances in which the will was created. In addition, consideration must be given to the consequences of a will being declared invalid.

Profile

Stephen Morris is a partner in the Dispute Resolution Department of Mundays LLP. He has been advising clients on disputes under the Inheritance (Provision for Family and Dependants) Act 1975 for more than 20 years. He also regularly advises on disputes arising in relation to the validity of wills and the administration of estates and trusts, including the conduct of executors and trustees.

Stephen has over 30 years’ experience in the negotiation of constructive outcomes to disputes in the fields in which he operates. Where appropriate, these are achieved through mediation, to which he brings maturity and an ability to get to the heart of the elements which underlie disputes and the personal issues which can make them so hard to settle.

Stephen also heads the Property Disputes team at Mundays which deals with issues arising from the ownership, letting and occupation of commercial and residential property.

Mundays is listed in both of these practice areas as one of the leading firms in the south east of England. Stephen is also acknowledged as a leading individual in Real Estate Litigation in Chambers’ Directory 2016 and the Legal 500 2015.

Stephen can be contacted by telephone on 01932 590588 or by email at stephen.morris@mundays.co.uk.

The case made headlines and triggered much discussion about the justice of the decision of the Court of Appeal, which resulted in a substantial reduction in the legacy which the deceased had left to a charity. What much of the reporting failed to do was to explain the underlying legislation on which the claim was based, the Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act), which provides a comprehensive framework for claims by what are often called ‘disappointed beneficiaries’ who fall into the following categories:
• The spouse or civil partner of the deceased
• A former spouse or civil partner of the deceased who has not formed a subsequent marriage or civil partnership
• Any person who was, for a period of two years or more leading up to the death of the deceased, living in the same household as the deceased as their husband, wife or civil partner (that is without having entered into a legal relationship of that nature)
• A child of the deceased
• Any person who was treated by the deceased as a child of the family in relation to their marriage or civil partnership
• Any person not within the above categories who, immediately before the death of the deceased, was being maintained, either wholly or partly, by the deceased.

In broad terms, the Inheritance Act provides for spouses and civil partners in the first two categories to be entitled to seek such financial provision as it would be reasonable for them to receive – whether or not that sum is required for their maintenance; the measure for all other claimants is such financial provision as it would be reasonable for them to receive for their maintenance only.

The court has very broad powers as to the sort of order it can make, in effect giving it liberty to review the assets available and to determine what arrangement best suits the circumstances of the case. In doing so, it takes account of a broad range of factors, not just the value of the estate but also the financial circumstances of everyone who might be affected by an order, not just the claimant, but also any beneficiary whose interest would be affected by a successful claim. The court also has regard to any special needs of the claimant and is specifically required to take account of any broader circumstances (including the claimant’s conduct) which it considers relevant.

In Ilott –v– Mitson, this led to a decision with which many people felt uncomfortable, given the particular circumstances of the case (the claimant daughter had been estranged from her deceased mother for 26 years at the date of her death and her mother had left specific instructions to the effect that she did not want her to benefit from the estate).

It is not the purpose of this article to discuss the merits of that decision but instead to alert readers to the availability of this remedy in the circumstances described. As Ilott –v– Mitson illustrates, the court’s decision in these cases can bring about what might be described as rough justice. It is inevitable that anyone embarking on such a claim is unlikely to be able to predict with any certainty what the outcome might be. Pursuing such a claim can also result in significant legal costs being incurred. For those reasons, it is usual for the parties to claims to seek to resolve them through negotiation, often assisted by the process of mediation.

The Inheritance Act contains significant further detailed provisions and the resolution of claims is subject to technical requirements (for example where a claim is brought on behalf of a minor or someone under a disability, where any settlement requires the approval of the court at a hearing specifically convened for that purpose). For that reason, anyone contemplating such a claim – or finding themselves having to defend one – should seek specialist advice from an experienced legal practitioner.

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