Against a background of declining litigation, courts are being kept busy with a continuing rise in probate and trust disputes. Ministry of Justice Judicial and Court Statistics show that proceedings have more than doubled since 2006 and increased by 14% between 2010 and 2011 alone.Why is this? One probable cause is the invalidity of wills. There are many reasons for this, marriage revoking wills that have previously been made, a UK will being inadvertently revoked when a new will is made in another country or DIY wills being incorrectly completed. Another is when a family member questions the validity of a will when they find that despite their expectations they are not named as beneficiaries.

One example from Canada, the case of (Ketcham v Walton, 2012 BCSC 175), illustrates the old saying “you can’t exert control from the grave.”  Eric Worthy directed his executor to use his estate’s assets to pay the legal fees in its defence in anticipation of his estranged adult children, who he had disinherited, disputing his decision to leave the $740,000 estate to charities and friends. Under the Wills Variation Act, which makes clear that any clause that denied the children the right to challenge the will was contrary to public policy, the British Columbia Supreme Court ruled against the clause and decided that an executor must keep a neutral position.

In an interesting case in Australia (Vogdanas v Kriaris [2012] VSC 248) the deceased’s adult son who’s only assets were his clothes and who suffered a myriad of medical conditions was successful in his inheritance claim even though the time limitations in the appropriate act had run out.

The son had never been given a copy of the will by the executors who also happened to his sisters and the beneficiaries of the deceased’s estate. He did not know what a grant of probate was or that one had been granted although the home that he had lived in with his father had been sold. This he was aware of as he had been required by his sisters to be absent at the times the property was being marketed for sale.

Subsequently he became aware of his right to seek provision from the estate and his solicitors made an application to the Victorian Supreme Court for an extension of time some 25 days after the Administration and Probate Act 1958 (Vic) time limitation period had expired. As he was able to argue that he had been ignorant of his rights under the act and that he had acted promptly once he had become aware of his rights, the court found in his favour as his sisters were not prejudiced by the delay.

Closer to home, in the case of Scarfe and another v Matthews and others ChD, the adopted children of Bernard Matthews invoked French forced heirship laws to prevent the deceased turkey tycoon’s French mistress from inheriting his £12m Saint Tropez mansion. His son George inherited most of his father’s estate but the adopted children who’d been left nothing were awarded the majority of the villa’s value despite the fact that Mr Matthews had written to his children asking them to let his mistress keep the villa.

Their claim for their French inheritance tax liability to be discharged by the executors from the English estate was denied. This was based on the modern approach to construction where a term can be implied into a contract if that is what a reasonable observer, with knowledge of the relevant facts would understand the contract to mean.

With all this activity in the courts it is more important than ever before that care is taken to choose a highly professional firm of probate genealogists, such as Finders. In these times of rogue traders and fraudulent claims becoming ever more prevalent, lawyers need to be sure that every aspect of the heir hunter’s portfolio is in order before employing them.

For further information and advice contact Finders