The Challenges being challenging a Will

12 Nov 2009

The challenges being challenging a Will

Last week Christine Gill successfully challenged her mother's Will which had left more than £2 million to the RSPCA.  This court challenge which is likely to result in an appeal by the RSPCA, is just the latest in a long line of high profile and often bitter disputes surrounding the estates of deceased family members.

Challenging a Will is an expensive undertaking, both in terms of time, money and in emotional effort.  Accusations fly, families squabble, charities huff and puff, and someone has to pick up the tab.  Yet it does not seem to deter an increasing number of individuals challenging the Wills of deceased family members.

It is difficult to pinpoint the exact reasons for such an increase, but the increased wealth generated by many ordinary people over the past two decades following sharp increases in house prices, the current recession and the increasingly complex family structures, often with children from two or more marriages, all contribute.

Typically, there are three grounds for challenging a will. The first of these is under the Inheritance (Provision for Family and Dependants) Act 1975 - the only statutory means of obtaining provision from the estate of the deceased when insufficient was set aside in the final will.

In order to bring such a claim, a potential claimant must overcome two objective hurdles: first, they must be eligible to bring a claim under the Act and, secondly, they must be able to show that, immediately prior to the death, they were dependent upon the deceased. The most common scenario would be children and co-habiting couples. The purpose behind the Act has been neatly summed up by Baroness Hale in the recent case of Macleod v Macleod [2009]: "It is contrary to public policy to cast onto the public purse an obligation which ought properly to be shouldered within the family".

This piece of legislation should always be borne in mind by solicitors when drafting a Will for a client who wishes to exclude someone who may have a potential claim.  Although the Courts' application of the law is that it should not be seen as a "scrounger's charter", an individual making a claim for support as a result of their own financial mismanagement will not attract the sympathy of the Court.

The other two ways to challenge a Will are by being able to demonstrate Undue Influence and lack of Testamentary Capacity.  It is extremely difficult to succeed in such as a claim, as I am sure Christine Gill would testify. The star witness - the deceased - is, by definition, dead, making it very hard for the claimant to discharge the burden of proof.

Christine Gill had to bring expert evidence that suggested her mother suffered from agoraphobia and severe anxiety, and she successfully demonstrated that her late father was, in the words of the judge: "domineering and bombastic... utilizing her anxiety and fear of his explosive character... to coerce her into making the will which she did".

In most scenarios discharging the burden of proof would be extremely difficult, and Ms Gill's ordeal is not over yet.  Although she has succeeded in getting the £2.3 million estate passed to her, the RSPCA have a statutory duty, as a registered charity, to protect and safeguard their funds, including legacies left via a will. They are, therefore, likely to appeal this decision which would result in months of continued litigation, probably costing tens of thousands of pounds - money most likely to come from the estate, but quite feasibly could end up coming from Ms Gill's own pocket, or the charitable funds of the RSPCA.

The infamous case of Kostic v Chaplin in 2007, concerning a dispute over the testamentary capacity of the testator, who suffered from a serious mental illness and a delusional disorder, highlights the costs of such an action.  The deceased left his entire estate, worth some £8.2 million, to the Conservative Party - an organisation he did not believe to be part of an international conspiracy of "dark forces" against him.  The family, understandably none too happy about this, disputed the will on the grounds of the testator's mental capacity. They eventually succeeded, but at a cost of £900,000.

Demonstrating to the Court that a testator lacked the necessary capacity is, in most cases, a difficult claim to successfully make.  Medical evidence will help to discharge the burden of proof which, again, lies on the claimant, but the rebuttable presumption is that a person has capacity to make decisions for themselves.

Potential claimants, and more particularly their legal advisors, need to be aware of the difficulties and costs associated with litigating a Will and be wary of the fact that, as with all litigation, once the wheels are set in motion they can be hard to stop as costs escalate and the issue of proportionality comes into play.  Having said this, legitimate claimants should not be put off seeking some initial guidance from their legal advisor.

Edward Chivers is a solicitor in the Private Client and Probate team at Buss Murton Law. He can be reached by email: echivers@bussmurton.co.uk

 

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