CONTENTIOUS PROBATE

Beware the invalid will

A cautionary tale from Cathryn Culverhouse regarding the importance of using a solicitor to ensure your wishes are carried out.

Last week brought another episode of Channel 5’s documentary series – Inheritance Wars: Who gets the money? The programme looks back at some of the leading inheritance disputes that have gone before the High Court and details the bitter disputes between families when a loved one dies.

Episode two centred around Diana Coad, a model and councillor from Slough. This case provided two important reminders:

  1. When creating a will, ensure that it is valid  by setting out your wishes and keeping it up to date, preferably having it drafted by a qualified solicitor rather than an unqualified, unregulated will drafter; and
  2. For those experiencing a dispute, you must comply with Court deadlines or you may face devastating consequences.

Diana met her future husband, Peter, in 1999. A few years later they moved into their dream home together, owned 50% by Peter and 50% by Diana. Shortly after, Peter found out he had prostate cancer. Fortunately, he recovered from this with Diana by his side caring for him.

Paul and Diana married on New Years Eve 2005,  accompanied by Peter’s two children from a previous marriage. After they returned from their honeymoon, Peter’s health issues continued and he once again required Diana’s care after suffering from a serious heart attack and later contracting MRSA. He later recovered from this awful illness.

Seven years later, in 2013, Peter collapsed during a round of golf and passed away.

Peter had always assured Diana that he had made a will after they were married, leaving his 50% share of their marital home (now worth approximately £900,000) to her. After his death, Diana found a will which left his whole estate to her but, unfortunately, it was unsigned and was not legally binding. It later transpired that Peter had used a will drafter rather than a solicitor which had led to a delay in preparing the will and, ultimately, Peter had not tied up his affairs properly.

As a result, Peter’s estate was due to be administered pursuant to the terms of an earlier valid will. This was a will written in 2005, before their marriage but in contemplation of it, which left all of Peter’s Estate (including his 50% share of the martial home) 50/50 between his children and Diana, but which included a clause that she could remain in the house for the rest of her life.

Five years of litigious correspondence ensued between Diana and Peter’s children. Diana felt that the children should abide by their father’s wishes despite the latest will being invalid. Furthermore, whilst Diana could stay in the marital home pursuant to the earlier will, she had insufficient funds to pay the bills and to cover her future needs. Diana also suffered from MS, which caused her difficulties and could lead to significant care costs. Diana made a claim for reasonable financial provision from Peter’s estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) on the basis that she had a need for further provision than Peter’s will provided her.

The 1975 Act allows certain groups of people to seek further financial provision from an estate. Those groups are as follows:

  • Spouses and civil partners of the deceased;
  • Former spouses/civil partners of the deceased (if they have not remarried or entered another civil partnership since);
  • Those living with the deceased as ‘man and wife’ for a continuous period of two years prior to their death;
  • Biological children of the deceased;
  • Those treated as children of the deceased – for example a stepchild, adopted child or foster child; and
  • Those who were financially maintained, for the whole or part of their life, by the deceased. As an example, this could include allowing someone to live in your property rent free or giving them a monthly allowance.

In determining what a claimant should receive, the Court will look at a number of factors, namely:

  • The financial needs and resources of the applicant, now and in the future;
  • The financial assets and resources of the beneficiaries of the deceased’s estate, now and in the future;
  • Any duties and obligations that the deceased had to the applicant or a beneficiary of the deceased’s estate;
  • The deceased’s net estate, including its value and the type of assets available;
  • Any physical or mental disabilities that the applicant or beneficiaries have; and
  • Any additional relevant information.

It is worth noting that an applicant must show that they have financial need for further maintenance from a deceased’s estate, unless they are a spouse.

On the face of it, Diana had a good arguable case for financial provision. She was Peter’s spouse, she had financial need, she had cared for him during his illnesses and his intentions were that she was to receive his whole estate, despite the fact he had not signed his most recent will.

In spite of this, Diana missed the deadline for filing documents in support of her claim and the claim was struck out. Diana was also ordered to pay the legal costs of both parties, which totalled over £80,000.

Diana was unable to afford these legal bills and had not paid by the deadline imposed by the Courts. The children went back to Court to enforce the judgment, which resulted in the marital home being sold to pay for legal fees.

At the end of the episode, Diana can be heard urging viewers to ensure that they have made a legally binding will in order to avoid leaving loved ones with an often difficult and acrimonious dispute.

If a dispute does occur, then those involved should make sure they comply with the timetable set by the Court at all costs. Getting it wrong could not only lead to the claim being dismissed by the Court, but also a large costs order. Whilst an application for relief from this sanction can be made, you are at the mercy of the Court.

If you are involved in a dispute regarding a loved one’s estate or feel that you have not been properly provided for then you should seek legal advice as soon as possible. There is a tight six month deadline from the date of the Grant of Probate for bringing claims pursuant to the 1975 Act.

About the authors


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Cathryn Culverhouse

Partner

Expert in a wide range of complex contentious probate disputes including 1975 Act claims, validity disputes and undue influence claims.

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