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Grounds for challenging a Will: Some recent cases

wills

Some recent legal cases highlight the difficulty in challenging a Will and the lengths some potential beneficiaries will go to, in an attempt to overturn what was the intention of the Deceased. They also show that there are many grounds under which a Will may be contested, even when heirs are named.

One argument that was presented in Lothian v Dixon and Webb (2014) was that an entitlement should be limited as the beneficiary had not suffered any detriment. The background was that Mrs Lothian had moved from Scotland to Scarborough to care for the Deceased and run the hotel where she lived in the belief she would inherit the hotel. The Deceased had given instructions for her will to be changed to reflect this but she passed on before the Will was executed. When challenged the judge considered that the support provided by Mrs Lothian and the altering of her lifestyle with no idea of timescale did constitute detriment and so Mrs Lothian inherited the entire estate. Although a considerable award it was consistent with the testatrix’s intention in the un-executed will to make Mrs Lothian her heir.

A gift of personal property, known as Donatio Mortis Causa (DMC), is reliant on three requirements:

1. They are made in contemplation of death
2. They are conditional upon death
3. There must be a delivery of the subject matter of the gift

This was made clear in the case of King v The Chiltern Dog Rescue & Others. The Deceased left the majority of her estate to various animal charities. Her nephew, who cared for her, brought the claim because 6 months previously she had told him “this will be yours when I go” and gave him the deeds to her unregistered house. However, it was held that this did not constitute a DMC as at the time the deceased was not contemplating her imminent death. The nephew was though awarded £75,000 under the Inheritance Act 1975.

Capacity is a subject that has been in the news recently and was the basis of the claim in the case of McCabe v McCabe 2015. The Deceased’s younger son, who had been disinherited when she changed her will in 2011, argued that the Will was invalid as she lacked capacity and the Will had not been correctly executed. Although Mrs McCabe made her Will when suffering with Alzheimer’s disease the court found that in terms of capacity the Will had not been based on delusion or confabulations and there were no other reasons to consider that the testatrix had not known of the contents of her Will, therefore the Will was valid.

Another grounds for challenge in the case of Sharp v Hutchins 2015 was lack of knowledge and approval, and that there were suspicious circumstances surrounding the preparation and execution of the Will. The late Ronald Butcher had changed his Will leaving his entire estate to a local builder disinheriting his family who thought it was strange because although the builder cleaned Mr Butcher’s gutters for free he hardly knew him. The Judge held that there were no suspicious circumstances surrounding the execution of the Will to excite the suspicion of the court and found it had been made with the deceased’s full knowledge and approval. The Will had been correctly executed, was short and the form was consistent with previous Wills, therefore she pronounced for probate.

Finders International can obtain Aviva insurance against a Will being found which disinherits heirs who have already been paid, thus safeguarding heir from ever having to repay their inheritance once received.

Finders International heir hunters also provide Aviva missing beneficiary insurance, which protects Trustees and Administrators against the unlikely but possible event of an unknown beneficiary emerging after an Estate has been distributed. As agents for AVIVA, Finders International probate genealogists and researchers are regulated by the Financial Conduct Authority.

Finders International heir hunters have been awarded Total Quality Management certification and are the first probate genealogy firm to achieve the international version of this ISO 9001:2008Standard as devised by the IAB (International Accreditation Board). Finders International have also been awarded ISO/IEC 27001:2005 Data & Information Security Certification.

For further information and advice contact Finders International HQ, 6-8 Vestry Street, London N1 7RE +44 (0)20 7490 4935 or call their Scottish Office in Edinburgh on +44 (0)131 278 0552 or their Irish Office in Dublin on +353 (0)1 691 7252