Although regularly claimed when the validity of a Will is disputed case law shows it is hard to prove undue influence in relation to Will making given there has to be actual undue influence – that is, coercion to be successful in that claim. The case of Hubbard v Scott [2011] EWHC 2750 illustrates the fact that there is no presumption of undue influence when making a Will.

This case is interesting and important as it provides guidance to practitioners for, not only when a Will is challenged based on a want of knowledge and approval, but also for Norris J’s comments on the difficulty of complying in practice with the ‘golden rule’ even though capacity was not in issue in this case.

The origins of a European instrument to govern mutual recognition of succession across the EU first appeared in 1998. There followed an extensive Green Paper which was issued in March 2005.

On 14 October 2009 the European Commission issued a long awaited draft Regulation. However, on 15 December 2009 Jack Straw, as Minister of Justice, announced that the UK government had chosen to elect to opt out of the Regulation – it could opt-in later in the negotiations.

Will draftsmen and probate practitioners will be familiar with the requirements for a valid Will as far as execution of the document is concerned – it must comply with s.9 Wills Act 1837 but in what circumstances might the execution still turn out to be valid when not signed strictly in accordance with the basic requirements?

The Law Commission released its final report on Intestacy & Family Provision Claims on Death on 14 December 2011:

(http://www.justice.gov.uk/lawcommission/publications/intestacy.htm ). In summary it recommends a package of reforms modifying the current legal rules to reflect modern social expectations and where possible to remove arbitrary or unduly technical aspects whilst retaining the fundamental English concept of ‘succession’ to an estate.

The issue in this case is quite simply whether the two purportedly attesting witnesses were in fact both present when the deceased signed his Will. There was a pretty standard attestation clause and there were two witnesses who signed in the allotted spaces below the testator but the deceased’s daughter, Balvinder, argued that the deceased signed the Will in the presence of just Mr Grantham at his house and subsequently obtained Mr Ahluwalia’s signature, who was not present at the same time.

This was a claim for rectification brought out of time by the deceased’s daughter, Caroline. The executors were willing to admit the claim and the residuary legatees who would otherwise inherit had written to the court confirming they would not oppose it. The court however, had to consider whether the grounds for relief had been met.

This case provides a useful reminder of how essential contemporaneous file and attendance notes are in examining the validity of a Will.

The facts

Mrs Helen Imrie Blofield (the deceased) died on 19 October 2008 having made her Will on 13 November 2006.  She appointed Lionel Cranfield (Lionel) as her sole executor and left him her entire estate.

The deceased’s granddaughter, Mrs Leigh Cowderoy (Leigh) disputed the Will and sought revocation of the Grant issued to Lionel.  If the Will failed Leigh would be the deceased’s sole beneficiary under the intestacy rules.

Following the coming into effect of Outcomes Focused Regulation (OFR) the vexed question of how to approach taking Will instructions from couples raises its head even more starkly.  This piece tries to spot the traps.

Who is the client?

Is it each individual person in a marriage who is the client or the married couple as some kind of entity?

Our professional Guide used to say:

In the recent case of Morris v Davies [2011] EWHC 1773 the deceased, Owen Davies, died unexpectedly in Paris. He was born in England and was a British Citizen but at the time of his death he was based in Belgium and weekly commuting to a place just outside Paris. His last Will was made on 30 March 1996. Which jurisdiction should deal with the validity or otherwise of his Will?

Will draftsmen and probate practitioners will be familiar with the requirements for a valid Will as far as execution of the document is concerned – it must comply with s.9 Wills Act 1837 but in what circumstances might the execution still turn out to be valid when not signed strictly in accordance with the basic requirements? The recent case of Barrett v Bem [2011] EWHC 1247 is a fascinating review of what passes muster.

End of life issues and how the Wills & Probate Practitioner might help

Did you know that it was Dying Awareness Week last week? I must confess I read about it in the Guardian and the Times (one of the consequences of lecturing around the country is you get to read a variety of newspapers) but had not previously heard of the organisation who planned it – Dying Matters. This initiative coincided with the investigation by the Times about the lack of available burial space in England and the publication of an interesting book by Patricia C Byron entitled ‘Last Orders’ – the essential guide to your letter of wishes.

All in all a great week for firms to engage with their clients and potential clients about the age old problem of making a Will and encouraging a tidy and organised death. What did you do? What could you do?

Under the Inheritance (Provision for Family & Dependents) Act 1975 [IPFD 1975] the courts have a discretion to alter the terms of the succession to a person’s estate despite our jurisdiction’s adherence to the principle of testamentary freedom. This discretion may be exercised in favour of an eligible applicant who can show that the deceased failed to make reasonable financial provision for them.

In the recent case of Ilott v Mitson [2011] EWCA 346 the court had to consider the claim of an estranged adult child. It calls into question just what a Wills draftsman can do to minimise the risk of a testator’s Will being affected by such a claim.

Most solicitors preparing Wills are happy to offer their firm’s services when it comes to the provision of executors if clients are unsure who to appoint. However, do you suggest it is compulsory? Do you inform the client of the choices open to them? Do you make it abundantly clear how you will charge for acting as an executor?

Those of us drafting Wills for a living are increasingly tired of the old saw that most Wills are simple. The Law Society campaign arguing for the regulation of Will writing has included anecdotal evidence of poor drafting and sharp practice which may encourage regulation. Against this backdrop the Legal Services Institute has published a paper entitled: “Legal Services: What is the case for reservation?” and I would commend Will draftsmen to read it.

The Office of the Public Guardian (OPG) is the administrative office of the Public Guardian which role is designed to ensure that those entrusted with decision making authority on behalf of those incapable of making decisions for themselves do so appropriately without abuse and in accordance with the Mental Capacity Act 2005 (MCA 2005).

The fee structure is up for review and views are invited on the proposals contained in their Consultation Paper published on 28 February 2011. The consultation period is apparently due to end on 21 May 2011 and the initial date for the coming into effect of the changes (1 April 2011) has therefore been set back to 1 July 2011.

The supervising of the execution of husband and wife mirror Wills is usually stress free but in the drive to be friendly the danger is we all too easily get distracted by talking to our clients and the easiest job becomes a nightmare. The recent case of Marley v Rawlings [2011] EWHC 161 is such a sad tale.

A trainee solicitor was instructed to sell Mrs Hill’s property in a private sale for £145,000. Originally this was on the basis that her daughter would then join her in buying an alternative property. What onus is there on the solicitor’s firm to establish a person’s capacity to enter into contracts in such circumstances?

The recent case of Thorpe v Fellowes Solicitors LLP [2011] EWHC 61 provides some answers.

I have just come across a report by Steve Brooker for the National Consumer Council (http://bit.ly/gPNLEI) which identifies the way in which changes in society are revealing a number of gaps in our inheritance laws which must be plugged by making a Will. However, the report (which is essential reading) highlights that the very people who should be making a Will often are the group least likely to do so.

The awkward case of RSPCA v Sharp reached the Court of Appeal on 21 December 2010. It was an appeal by the RSPCA against the judgment of Peter Smith upon the interpretation of a testator’s Will. The interpretation of the Will had been challenged by the RSPCA as residuary beneficiary and caused much debate. He found against the charity and was most critical of their approach to the matter. The Court of Appeal unanimously disagreed with the trial judge and concluded the RSPCA should succeed.

Dr Christine Gill received much publicity in her fight to have her mother’s Will set aside. She succeeded at first instance and as a result inherited the family farm estimated to be worth £2.1 million. The Judge decided the case on the basis of undue influence and the RSPCA appealed. The Court of Appeal unanimously declined to accept the basis of the finding on 14 December 2010 in favour of Dr Gill but supported her cross-appeal and so supported her case but decided it on a different basis.

Happy 2011 to you all! After the festive fizz now the new year slumber but hopefully not slump. 2010 was something of a transitional year with a change in government and the beginning of a slight improvement in the economy but 2011 is the beginning of the Coalition’s economic deep freeze which will start in earnest to-day with the increase in VAT to 20%.

As the historians say you cannot understand the present without understanding the past I thought it was timely to review some of the ‘highlights’ of 2010.

You may have wondered whether I had dropped off my perch or was sunning myself on some foreign shore. Neither in fact. I was none too well and then rather overwhelmed in catching up so my apologies for leaving you in the lurch just as the snow and cold hit.

While I have been off the air I have been busy with a number of conferences, consultations and considerations. What has become all too apparent from recent events is the inexorable rise in contentious probate. Is it time for all non-contentious probate practitioners to consider becoming litigators or at least understand what is involved in the processes and procedures of litigation and mediation?

Q. When drafting wills, we offer our services as executors, although the client may of course choose someone else. However, a solicitor who has recently joined the firm has questioned this practice. Is there anything improper in it?

A. It depends on the manner in which you do this and the information and advice you give to your clients. There is nothing improper per se in your firm being appointed as executors, but:

The Mental Capacity Act 2005 requires those acting for persons who have lost capacity to make decisions in the best interests of the person lacking capacity. In situations where a statutory Will is requested the Court is in danger of encouraging numerous applications where the main issue is the validity of a new Will made when there was doubt about testamentary capacity or concern as to undue influence. This case sets out the applicable principles to be applied when authorising a Deputy to execute a statutory Will.

The function of rectification is to put right a mistake in the way the parties recorded their agreement. The problem often is that it is hard to distinguish the misapprehension about the tax consequences of executing a particular document from the parties’ specific intention as to how the fiscal objective was to be achieved in the terms of the agreement. Simple misunderstanding of the tax consequences does not justify an order for rectification as the case of Ashcroft v Barnsdale [2010] EWHC 1948 shows:

This case involved a slight development in the Banks v Goodfellow test for mental capacity as it takes into account the testator’s decision-making powers rather than just comprehension which the Judge felt was necessary because of the development of psychiatric medicine.

The interpretation of a testator’s Will was challenged by the RSPCA as residuary beneficiary which caused the judge to comment that the charity’s claim was “extremely weak and should not have been brought”. However, the charity argued that all it was trying to do was to honour what it believed was the deceased’s intention.

An interesting recent thread on the Trust Discussion Forum reveals how easy it is to do what the client asks and believe you have drafted a simple clause which will do precisely what the client wants but yet cause probate mayhem.

I am all for simplicity but will the outcome work in the way anticipated by the client if technical words are not used? Sometimes what is required may seem to a lay person legal jargon but nevertheless it is necessary. Our job is then to explain what the words do and why they are needed.

The origins of a European instrument to govern mutual recognition of succession across the EU first appeared in 1998. There followed an extensive Green Paper which was issued in March 2005.

On 14 October 2009 the European Commission issued a long awaited draft Regulation. This can be found at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0154:FIN:EN:PDF#page=2.

However, on 15 December 2009 Jack Straw, as Minister of Justice, announced that the UK government has chosen to elect to opt out of the Regulation – it can opt-in later in the negotiations.

How will your practice be affected?

© Gill Steel, LawSkills Ltd. 2009

In the case of Devas v Mackay [2009] EWHC 1951 (Ch) the family of a wealthy widow succeeded in their claim against a home made Will leaving her entire estate to the son of her carer. Mrs Devas had been isolated from her family by her dementia and arguably by the behaviour of her carers. Her capital was substantially depleted before her death in 2006 giving rise to the suspicion of fraud by those caring for her.

The STEP provisions 1st Edition were in need of updating to reflect both changes in the law and practical problems in administration.  It seems hard to think that since the 1st Edition was published we have had the Trusts of Land & Appointment of Trustees Act 1996, the Trustee Act 2000 and the FA 2006.

The Bill has now been heard by the House of Lords and has passed to the House of Commons which will not now be able to consider it further until after 12 October 2009.

In the summer clients often want their Wills prepared in a hurry before they go on holiday. The poor Will draftsman has to drop everything but what if the crucial problem is not asking the right questions about the connection this client has with his destination of choice? Could it be that the client is actually legally or fiscally linked to the jurisdiction in which his holiday is to take place? The Will draftsman will forget the critical questions at his or her peril.

The so-called simplification of Will drafting by the introduction of the Transferable Nil Rate Band (TNRB) has complicated matters for some clients. Where the clients have been married (or been in a civil partnership) before particular care is required in assessing the use or transferability of the previous spouse/CP unused nil rate band. The Will drafter should focus on where any unused nil rate band may be wasted and whether the client appreciates the options open to him. For a simple checklist to consider in such circumstances please click below.

CHECKLIST - download pdf here

© Gill Steel, LawSkills Ltd. 2009

The vexed question of whether or not Will drafting should be regulated has dogged the legal world for years. However, as we await deliberations on the regulation of solicitors by Lord Hunt on behalf of the Law Society and the decision of the newly created Legal Services Board on which legal services should be regulated and which need not, it seems timely to re-visit this question. The overwhelming majority of those responding to the poll survey on this website were in favour of regulation.

HMRC are replacing the IHT200 with IHT400 with effect from 9 June 2009 but the new form is already available on the HMRC website. The basic concept of the IHT account is unchanged – it will continue to constitute a core form with various schedules.