It has been possible to rectify the Will of a deceased person since the Administration of Justice Act 1982 came into force. The recent case in the Estate of Bridget Murray is an extreme example of a claim for rectification and demonstrates just how far some families will go to enforce changes to a Will which on the face of it, appears to incorporate the deceased’s last wishes.
Mrs Caroline Barrett was named a beneficiary of Bridget Murray’s Will. Bridget Murray, Mrs Barrett’s grandmother, a strict Catholic, made the Will a few months before she died. However, Mrs Barrett’s aunt and two uncles issued a claim to rectify the Will on the basis that:
(1) the legacy to Mrs Barrett was a drafting error by the solicitor who drew up the Will, and
(2) Mrs Murray actually had no intention of leaving any of her Estate to her granddaughter because, in her mind, her granddaughter had lived in sin by moving out of her family home to live with her boyfriend for the 18 month period prior to their wedding.
Under the Administration of Justice Act 1982 if a Court is satisfied that the deceased’s Will failed to carry out their intentions due to either a clerical error by the person who drafted the Will, or a failure by the Will draftsman to understand the instructions of the deceased, the Court may order that the Will be rectified to carry out the true intentions of the person making the Will.
In this particular case, the Court was satisfied that there was sufficient evidence to demonstrate that Mrs Murray did indeed intend to cut her granddaughter out of her Will. The Judge accepted that some might not agree with the strong religious views held by Mrs Murray, but it was not the Court’s decision as to whether those views were held fairly.
This case was widely reported in the press and is a good example of how rectification claims work in practice. It is also a clear example of how important it is that anyone who wishes to make a Will seeks professional advice and instructs someone who has sufficient experience and legal knowledge to draft the Will accurately so that it will carry out their intentions.
Daniel Winter (profile) 
Wednesday 2nd May 2012
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An interesting validity dispute came before the High Court recently. Olga Smith, the estranged widow of Thomas Joseph Smith, claimed that his last Will, which left nothing to her, his wife, was invalid due to Mr Smith not having sufficient mental capacity at the time that he made his Will. Mr Smith died as a result of a brain tumour. His widow claimed that the brain tumour caused disturbances to Mr Smith’s mind so that he was unable to understand the full nature and effects of the act of making his new Will, and caused him to make a Will that he would not have made had he been in “his right mind”.
Olga Smith described a pattern of irrational behaviour which she said led to their separation, which included Mr Smith dressing in her clothes and assaulting her.
However, Mrs Smith’s claim failed. The Judge found that there was insufficient evidence that Mr Smith did not have mental capacity to make his last Will. In cases where mental capacity is an issue, medical evidence is crucial. Evidence which is usually taken into account is the deceased’s historic medical records giving details of any signs of loss of memory or mental illness, and the testimony of treating doctors and physicians. Whilst it is not known what evidence, apart from her own, Mrs Smith put forward to the Court, the Judge was not convinced.
Mr Smith’s Will was upheld and Olga Smith was ordered to pay her opponent’s legal costs which were substantial.
Validity disputes relating to Wills are becoming more commonplace.Should you require any assistance or advice with regard to either challenging a Will, or defending such a challenge, please contact our specialist Probate Dispute Resolution Team by visiting http://www.nockolds.co.uk/sector-expertise/contentious-probate.htm.
Daniel Winter (profile) Wednesday 21st March 2012
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This week saw a successful appeal in the case of Pinnock v Rochester which confirmed that a Claimant may make a claim for financial provision from an Estate under the Inheritance (Provision for Family and Dependents) Act 1975; and also launch a separate claim to challenge the validity of the Will. Many past claimants have probably been under the misapprehension that they could only choose to make one of the claims but not the other.
Mr Pinnock first made a claim against his late father’s Estate for reasonable financial provision under the 1975 Act on the basis that his father’s Will did not adequately provide for his needs. Mr Pinnock received £28,000. He then began a claim to challenge the validity of his father’s Will. The validity claim was defended on the basis that a Claimant must choose either a claim for reasonable provision under the 1975 Act, or challenge the validity of the Will, but not both. This argument was accepted by the Court of first instance and it was held that by claiming under the 1975 Act Mr Pinnock had affirmed the validity of the Will and could not then challenge it.
This decision was reversed on appeal and it has been confirmed that it is quite acceptable to make both claims. In the future potential claimants should be careful to consider all their options and not rule out running more than one claim provided there are sufficient grounds and it is tactically advantageous.
Please feel free to contact me for advice on any contentious probate issues.
Daniel Winter (profile) Friday 18th November 2011
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The case of Leonard Taylor has been widely reported in the national press and it concerns a “gift” of £61,000 paid to him by cheque from his partner, Doris Luker, just a week before she died. Two charities, the British Heart Foundation and the Cancer Research Campaign, who between them stood to receive the residue of Ms Luker’s Estate, challenged the “gift” in the High Court, successfully arguing that the payment was in fact a loan. Mr Taylor appealed but now the Court of Appeal has affirmed the High Court’s decision and Mr Taylor has been ordered to pay the charities’ legal costs and openly admits he will have to sell his house to pay them. This case has raised several complex issues regarding lifetime gifts, and the reality is that had Ms Luker taken some simple steps in advance the costly dispute could have been avoided. Lifetime gifts remains a practical and legal option for financial planning but this case underlines the importance of obtaining professional legal advice. The case also highlights the importance to executors of scrutinising every significant lifetime gift as there may well be reason to reclaim such “gifts” and increase the value of the Estate just as the charities found to their favour. Please feel free to contact me for further advice.
http://www.telegraph.co.uk/news/uknews/law-and-order/8867462/Toy-boy-72-faces-losing-home-after-court-battle.html
Daniel Winter (profile) Tuesday 15th November 2011
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Last Thursday 31 March 2011, was a good day for one Mrs Ilott, and gave a glimmer of hope to many other adult children who have been disinherited by their parents.
Up until then, the generally accepted position was that a person remains at liberty at their death to dispose of their own property in whatever way they please, and in the case of an adult child who is able to earn their own living and suffers from no disability that affects their financial independence, that child has no legal claim to alter their parents’ wishes after their passing.
Melita Jackson died in 2004 at the age of 70, but in her Will she left all of her residuary estate to animal charities, and not her daughter, Heather Ilott. She had her own reasons and sensibly recorded these in a side letter to be read in conjunction with her Will, so as to try to avoid any future dispute after her death.
Mrs Ilott contested the Will, and on Thursday the Court of Appeal released its Judgment. Mrs Ilott’s claim was brought under the Inheritance (Provision for Family and Dependants) Act 1975, and she argued that the Will did not leave her reasonable provision. Mrs Ilott had become estranged from her mother for over 25 years following disapproval of her choice of boyfriend (now husband).
The animals charities had vigorously defended the appeal on the basis that the law should be interpreted as it has been for many years and that because Mrs Ilott had not been financially dependent on her mother, and did not suffer from a disability that impacted on her income, the wishes expressed in the Will of her late mother should not be interfered with.
The Court of Appeal upheld the original decision of the District Judge, in that it was reasonable for Mrs Ilott to be paid an inheritance from her mother’s Estate, even though they had become estranged and the Will had left her nothing.
It follows that this decision by the Court of Appeal could mark a change in direction for the law, opening up the potential for more claims from disaffected adult children. Whether the "flood gates" have been opened, remains to be seen. These particular cases often depend on the individual facts and circumstances, so its application in the future may not be as wide as some commentators may believe. However, this case may lead to an interesting period of development in this area of law. On one hand, it gives hopes to potential litigants that they may have a claim, and on the other hand it will give cause for concern to people who are considering writing out family members from their Will. In either case, Nockolds LLP can advise you on potential claims and how best to minimise the risks of potential claims against your Estate in the future.
Daniel Winter (profile) Thursday 7th April 2011
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