Contesting a will

More often than not, it is in the interests of parties to try to settle their case before it reaches a final hearing. This is because you can never be 100% sure that you will win your caseand also due to the time, costs and (quite often) emotional burden of legal proceedings. This is an example of a case that we recently acted on where our clients obtained a successful settlement through mediation.

Our client’s friend (“Ms D”) had left her entire estate to our client under a Will that she prepared in 2015. Our client had been close friends with Ms D for years. Ms D had two children, who she had stopped all contact with over thirty years ago after a family argument. When Ms D made her Will, she also wrote a letter explicitly stating that she did not want either of her two children to inherit anything when she died.

Two years after Ms D executed her Will, she prepared a new Will which disinherited our client and sought to leave her estate to her estranged children. After a review of Ms D’s records, it was apparent to us that Ms D did not have mental capacity at the time she executed this more recent Will. We instructed an expert Professor of Medicine who agreed that Ms D lacked capacity at this time.

Our client’s position therefore was that the more recent Will was invalid, and that the previous Will should be admitted to Probate. This would have meant that our client inherited Ms D’s estate and Ms D’s children would not inherit.

Even though our client had a good case, he was keen to attempt reach a settlement with Ms D’s children and avoid going to court. We instructed a reputable mediator and held the mediation at our Newcastle-upon-Tyne office. Given the emotive nature of the dispute, the parties wanted to avoid seeing each other, and we were able to facilitate this whilst ensuring a comfortable environment for both parties.

A benefit of mediation is that clients have more control over how they want the day to play out, and it is a much less formal environment than a court hearing. Whilst the strength of legal arguments are very relevant in a mediation, you can also make other arguments and parties can also agree settlements on whatever terms they both agree to, unlike a court which only has the power to make certain awards.

Despite their advantages, mediations can often last for many hours, and can be quite draining for the parties. We remained on-hand to support our client throughout the day, and encouraged him to take a break and go for a walk.

Ultimately, the mediation was successful and both parties were satisfied with the outcome. Once a settlement had been agreed, we liaised with Ms D’s children’s solicitor to draw up a legally-binding Settlement Agreement at the mediation, so that all parties could sign this on the day and leave our offices knowing with absolute certainty that an outcome had been reached.

Miss K came to Ward Hadaway following a recommendation from her own solicitor.  She had worked all her life on a farm belonging to Mr Z who had recently died.  She had begun working on the farm aged 11 during the summer holidays. She left school at aged 15 and left her own family to go and live on the farm.

She worked on the farm from the 1970’s through to 2017.

Mr Z died and although his Will expressed the wish that that Miss K could stay on the farm for the rest of her life, the farm was left to his own daughters.  The farm was worth more than £4 million.

Miss K told us that since the 1970’s the farm had been promised to her.  It was because of this promise that she had stayed on the farm. She had worked long hours for a very low wage, rarely taken any holiday and sacrificed personal relationships.

She was devastated at the contents of the Will.  An earlier Will had provided that she would receive the farm so she was suspicious and concerned at the changes.

Miss K had written to the daughters of the deceased (who were the executors of the Will) requesting that she be allowed a formal tenancy to stay on the farm but they refused.  Mr Z’s daughters knew that that Miss K had no money or assets of her own. They were threatening court proceedings to evict her from the farm.

We met with Miss K and knew that her case was a strong one. Ward Hadaway arranged to act on a no win-no fee agreement and also put in place similar arrangements with a leading QC with whom we had worked previously.  We also arranged funding for Miss K so that she could purchase an insurance policy in case she were to lose at court and to help pay for such items as court fees.

The daughters refused to settle the claim and court proceedings were issued on behalf of Miss K. Based on the principle of proprietary estoppel, we asked that the court make a declaration that the farm belonged to Miss K.

The case proceeded to trial. On the day of the hearing, the daughters finally stated that they were willing to talk seriously about the settlement of the claim.

The claim settled for a payment to Miss K of £2.2 million without a trial on evidence.

Miss K used these funds to purchase a new smallholding and to start a farm of her own in the Peak District.

We recently acted on behalf of a client who was very concerned that her father (“P”) did not have capacity at the time P executed his lasting powers of attorney. Despite attempts at settlement, this matter reached a Final Hearing before a District Judge in the Court of Protection.

Initially, our client was unaware that her uncle had recently been appointed as P’s attorney. Due to disagreements in the family (and in particular a lack of consensus as to how best manage P’s care), our client sought for an independent solicitor to be appointed as a deputy for P. When the proposed deputy made an application for her appointment, our client’s uncle objected to this on the basis that he had already been appointed as P’s attorney (for both P’s financial and property affairs and for health and welfare matters).

We felt that there was significant evidence which indicated that P lacked mental capacity at the time he appointed our client’s uncle as his attorney. There were also ancillary concerns regarding the uncle’s behaviour in his capacity as P’s attorney. We carried out a detailed review of P’s medical records and other documents available from around the time that he executed the lasting powers of attorney, including letters written by P and voicemail recordings from P.

Our client’s uncle, who became the Respondent in the case, stated that P did have capacity at the time he executed the lasting powers of attorney, and defended the proceedings.

A Consultant in Clinical Psychology was instructed to prepare an expert report and give his opinion as to whether P had capacity at the time she executed her lasting powers of attorney. By this time, P’s health had unfortunately deteriorated further, and he was residing in a care home and had been formally diagnosed with dementia. The expert said that in his opinion, he did not think that P had capacity at the time that he executed the lasting powers of attorney.

The Office of the Public Guardian applied to join the proceedings. The Office of the Public Guardian is an independent safeguarding body which has the power to investigate any potential issues relating to attorneys, deputies and guardians. The Office of the Public Guardian also believed that, on the balance of probabilities (the legal test), P did not have capacity to execute the lasting powers of attorney.

Unfortunately, the parties were unable to settle this matter and so had to attend a Final Hearing. Although most cases do settle before a Final Hearing, this can be more difficult in cases which involves a very emotive subject and where the parties feel very strongly about their positions.

We interviewed a number of key witnesses and assisted with the preparation of witness statements, and provided detailed instructions to a barrister so that she could best present our client’s case before the Judge.

As the Final Hearing took place during the Covid-19 pandemic, the hearing took place virtually. We provided a Covid-secure environment for our client and our witnesses to give their evidence and watch the case via video-link.

Attending a Final Hearing, particularly one regarding such a personal subject matter, can be very stressful and, at times, quite upsetting. Throughout each stage of the proceedings, we ensured that our client felt supported and receive the clearest possible advice as to our view of their position and what their options are. We have strong links with extremely well-respected barristers who specialise in this area of law, and will always work with the barrister and the client to present their case in the best possible manner.

The court found in favour of our client that P did not have capacity to appoint an attorney  when she attempted to do so.

We were instructed by a private individual in relation to a potential claim against his former solicitors, as a result of tax which our client had to pay as a result of allegedly negligent advice from his former solicitor.

Our client wished to provide gifts to both of his daughters in order to set them up financially after they had finished at university.  In this respect, our client had been in a position to purchase a new-build property for his elder daughter so that she and her husband could get started on the property ladder.

Our client wishes to effectively equalise this gift in order to treat both of his children equally.  In this respect, our client had a holiday home which he wished to gift to his younger daughter, which would mean that she would receive an asset of approximately the same financial value as the new-build house which had been purchased for the elder daughter.

Unfortunately, our client was not advised that – seeing as the holiday home was not his principle private residence – that as soon as this property was gifted to his younger daughter, HMRC would treat the gift as if the transfer had taken place at full market value.  Seeing as our client had held the holiday home or over 30 years, it had appreciated considerably since he had first acquired it.  As such, even though he gifted the holiday home away to his second daughter for nothing, because HMRC treated the transfer as if it had been made at market value, this resulted in our client being faced with a significant capital gains tax liability.

Our client was strongly of the view that, had he been advised about the capital gains tax charge involved in gifting the holiday home to his second daughter, that he would have found another, much more tax efficient way to equalise the gift which had been made to his first daughter.

Accordingly, we were instructed to bring a claim on behalf of our client against the solicitors who had failed to advise our client of the tax consequences of gifting his holiday home.  This involved writing a letter of claim to the solicitors who had advised our client on the gifting of his holiday home to his second daughter, explaining why they had failed in their professional duties to our client by not warning him of the tax implications of gifting the holiday home, and explaining that they were liable to compensate our client for the amount of tax which he had paid.

We successfully resolved the case for our client without the need for him to go to court.

We were instructed by the executor of an estate, who was administering his parents’ estate.  Both parents had sadly died within a few months of each other, and the Will of the father (who died after the mother) left everything in the estate to be divided between various children and grandchildren.

Our client faced considerable hostility in administering the estate from his brother, who considered that he ought to have been appointed as executor.  The brother suggested that the executor had sold assets at lower than their true value, was charging unnecessary expenses to the estate and that he was not making interim distributions to the various beneficiaries.

Eventually, the brother issued an application at court to have the executor remove from his role, and at that point we became instructed by the executor.

It became clear that the beneficiary brother’s main cause for concern was that he felt that our client the executor had been too slow in collecting in the various assets of the estate – including arranging the sale of the deceased’s property – and that the executor ought to have been making interim distributions from the assets of the estate pending the sale of the property.  This was particularly the case because the beneficiary brother’s personal financial position was quite precarious at the time.

In reality, the administration of the estate was complicated by the fact that the deceased had generated several liabilities during his lifetime which were not known to our client the executor, and which required investigating.  As such, he would have been at risk as executor if he had made any significant distributions to the beneficiaries in the event that claims from other creditors subsequently came to light once the estate had been exhausted.

Despite the beneficiary brother having issued a claim at court to seek our client’s removal as executor, we managed to resolve the dispute very quickly thereafter and our client remained in his position as executor and proceeded to finalise the administration of the estate on the terms provide for in the Will, without any interim distributions having to be made.

Our client Mrs B had sought advice on the best method to reduce the Inheritance Tax payable when her four children would inherit the Property she currently lived in.

She  had been advised that placing her Property into a Trust would be the best option and that would carry with it tax advantages.

Unfortunately the advice provided was incorrect did not properly advise our client as the consequences of her continuing to live in the property which were to defeat the tax benefits.

The adviser’s insurers admitted the advice was incorrect and also agreed to fund our client’s costs for going to court and asking a court to unwind the trust.

At a hearing the court agreed to unwind the trust and the property has been transferred back to our client with no adverse tax consequences.

A link to the judgement can be found here