Category Archives: Inheritance & will disputes

Widow Who Forges Will to Get £1m Fortune May Still Inherit All

It has been reported recently that a former legal secretary, Dawn Smith, forged a Will to benefit from the entire estate of her wealthy 61 year old husband Harvey.

Smith, 47, married her husband 3 years before his death. It appears that she forged his Will, faking the signatures of her husband and witnesses. The forged Will excluded her husband’s two adult daughters from his previous marriage and made herself and her son from another relationship the sole beneficiaries of his £1 million estate.

After her husband’s death in 2012 she initially told his family that she didn’t believe that he had a Will but she later produced the paperwork leaving his £500,000 house in Darlington to her, together with a pension worth £420,000.  She has since remarried a Turkish waiter.

The deception was uncovered when a partner at the Darlington firm of solicitors, Hewitts where Dawn Smith had worked, thought it suspicious that Harvey’s adult daughters were overlooked whilst Dawn’s son was included.  Police were alerted and a handwriting expert concluded that the deceased’s signature was a forgery.

The case raises the intriguing question now as to what will happen to Harvey Smith’s estate?  Marriage revokes a Will – so any Will that he had made before his marriage to Dawn is no longer valid.  If there had been no Will the estate would have passed to Dawn under the intestacy rules.

It seems likely that she decided to forge the Will because, after their marriage, her husband made a new Will in which bequests were left to his daughters as well as to her and she wanted to avoid them being beneficiaries.  If that was the case then the forged Will is obviously invalid and the previous Will would take effect.

But, that would mean that Dawn Smith would still benefit from her late husband’s estate despite being a convicted fraudster.  The situation is even worse had he made no Will after his marriage (or if any such Will had been destroyed by Dawn Smith) because everything would then pass to her under the intestacy rules – again, despite her conviction.

Partner and contentious probate specialist, Sarah Young of Ridley & Hall Solicitors, comments:-

“Rather shockingly the legal rule of forfeiture does not help Harvey Smith’s daughters in this particular case.

The forfeiture rule applies to prevent a beneficiary from receiving benefit under a Will if he has unlawfully killed the testator (the maker of the Will) or unlawfully ‘aided, abetted, counselled or procured’ his death.  It does not extend to other crimes.  The rule also applies to intestacy.  Without knowing more of the facts of the case one can only speculate about the final outcome in this case – but it seems likely that the widow here will receive some financial benefit despite her conviction for fraud.”

Sarah Young is concerned about the wider implications in financial abuse cases:

“The same principle applies to perpetrators of financial abuse. Say, for example, someone faces criminal proceedings for having stolen money from a vulnerable elderly person. If they have been left money in a valid Will (or if they would inherit anyway under the intestacy rules) they are still be entitled to inherit their bequest after their victim dies.  As a matter of public policy this must be wrong!”

Financial abuse, particularly of the elderly, is on the rise.  The charity Action on Elder Abuse has reported a 150% increase in reports of financial abuse to their helpline in the last year; 680 calls to their helpline in 2013 showed that transactions involving £24m were reported as having been either stolen, defrauded or coerced.

Sarah Young warns:

“This is a crime that is most often perpetrated by family members and of course, they will often benefit under a Will or intestacy. For that reason, in my opinion, the forfeiture rule should be changed to prevent individuals who have been convicted of an offence of fraud from benefiting from a Will or an intestacy of their victim.”

Sarah Young is a Partner with Ridley & Hall Legal Limited and specialises in Will disputes, cases involving missing people and the Court of Protection. Sarah offers practical, friendly and cost effective advice.  She understands the sensitive nature of cases which often involve disputes between families and has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah Young of Ridley and Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538421 or mobile 07860 165850.

Secrets and Lies; the Will of Lucian Freud

A court battle over the estate of the late artist Lucian Freud has put the spotlight on the little known area of law of secret trusts.  The artist had 14 children.  After he died on 20th July 2011 it quickly became apparent that his estate of some £42m had been left to his solicitor and one of his daughters (who were also appointed as executors of the Will).

Lucian Freud’s son Paul challenged the validity of the Will; if it was found to not be valid his father’s estate would pass under the intestacy rules which would mean that it would have been divided equally between all 14 children.

The executors of the Will argued that the £42m was being held by them under a “secret trust”.   A Will becomes a public document as soon as a grant of probate is made (this is a document that gives an executor power to deal with a deceased’s assets after their death). Freud wanted to keep his wishes entirely private and, on legal advice, used the little known option of creating a hidden trust.

The solicitor and daughter said that before his death Lucian Freud had told them what he wanted them to do with the money – and that he didn’t want his other children to know what that was.  It was made clear to Paul Freud by the executors that he was not to benefit under the trust.  So what is a secret trust? Simply put, a trust can be described as a relationship created at the direction of an individual, in which one or more persons hold the individual’s property subject to certain duties to use and protect it for the benefit of others.  The person who holds the property for another’s benefit is called a ‘trustee’ and the person who benefits from the trust is the ‘beneficiary’.

In a fully secret trust the Will does not reveal that a trust exists at all. It is simply an earlier agreement between the maker of the Will and the trustees during their lifetime.  Half secret trusts arise when a Will refers to a trust but is silent about any specific instructions – for example A might leave a bequest to B “for the purposes for which I have told him.”

Paul Freud argued that in fact, his father had tried, and failed, to create a half secret trust, which made the Will invalid.  However, at court, the executors of the Will successfully established that a fully secret trust had arisen.

The drama may not be over because Paul Freud and his siblings could bring a separate challenge under the Inheritance Act 1975 to say that the Will did not make “reasonable financial provision” for them.  It is possible for adult children to bring claims against a parent’s estate but these claims are not easy to pursue unless, for example, the adult child was financially dependent on their parent at the time of their death.

Ridley & Hall Partner Sarah Young comments:

“Fully secret and half secret trusts are rare – and it’s easy to understand why the artist’s son in this case was suspicious. On the face of it his father was leaving his incredibly large fortune to his solicitor and one daughter.  But it is clear that Lucian Freud had received professional advice and the law does permit secret arrangements like this. Historically, in Victorian times, men who had a mistress and illegitimate children wanted to be able to provide for them without their legitimate family finding out after their death; secret trusts provided an opportunity for them to retain a veneer of respectability.”

She went on to add:

“Generally speaking it’s not a course of action that would be recommended by solicitors because of the risk of a dissatisfied family member challenging the trust.  Also, of course, the Will maker is relying heavily on his trustees to do what they are asked to do after he has died!  The best way to try to prevent disputes after your death is to make a Will with the benefit of expert legal advice from a solicitor.”

Sarah Young is a Partner with Ridley and Hall solicitors in Huddersfield. She specialises in inheritance disputes and has a particular interest in cases involving missing people and financial abuse.

For further information please contact Sarah Young of Ridley & Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on her direct dial 01484 558838 or her mobile 07860 165850.

Ridley & Hall Listed in Legal 500 for 4th Successive Year

Ridley & Hall is delighted to announce that we have been listed in the Legal 500 in three separate areas; contentious probate, family and private client work.

The Legal 500 is a trusted directory providing comprehensive information on the UK’s recommended leading law firms.

Our Contentious Probate team, headed by partner Sarah Young has been listed as a third tier specialist department and highlights Sarah’s work in missing people.

Sarah commented; “I am delighted that the hard work and dedication of my team, and the work of our family and private client teams has been recognised by the Legal 500.”

In addition to her specialist knowledge and experience of dealing with complex contentious probate claims, Sarah is one of leading experts in missing people and has acted for many relatives who are seeking orders in relation to missing relatives.

Our expert Family team have been listed in the Legal 500 for a fourth consecutive year, which team leader and qualified mediator Vicky Medd is extremely proud of.

“When legal aid was abolished for the majority of private family law cases, many thought this would mean the end of family departments,” commented Vicky, “however with our range of fixed fee packages which we can tailor to an individual’s needs and financial circumstances, we are able to continue to grow as a department.”

Finally, the Private Client department which specialises in a range of services including Wills, probate and Lasting Powers of Attorney has also been re-listed for a fourth time. The head of department, Jill Waddington and her team have extensive experience in complex probate and inheritance tax matters.

Managing Partner, Adam Fletcher, commented, “The recognition from Legal 500 reiterates our commitment to delivering a high standard of service to our clients. Furthermore, it demonstrates that the practice provides, not only the usual services you would expect from a high street firm, but we are also leading the way in niche areas such as kinship care, court of protection and missing people.”

What You Need to know About the New Inheritance Act 2014

On the 1st October 2014, the Inheritance and Trustees’ Powers Act 2014 will come into force.

The Act is a result of a six year project by the Law Commission, based on studies which have suggested that between half and two thirds of the adult population do not have a Will and those who need one most are, in fact, the least likely to have one.

Amongst other things, the Act makes changes to the Inheritance (Provision for Family and Dependants) Act 1975. That act allows certain family members and dependants to apply to court for reasonable financial provision from the estate, under the Inheritance Act. This applies whether or not the deceased made a Will.

Firstly, the law now makes it clear that a claim can be brought under the Inheritance Act before a grant of representation is made, something that was unclear before.

It has always been the case that only certain categories of people can bring a claim under the Inheritance Act, and the Inheritance and Trustees’ Powers Act will widen that category in relation to children. Currently, a child of the deceased is entitled to bring a claim under the Inheritance Act, as is a step child providing that the deceased was married to their parent at the time of death. From the 1st October the requirement for the relationship to be have been acquired by marriage will be removed – the deceased must ‘stand in a role akin to that between a parent and a child’.

Helen Dandridge, solicitor, commented:

“The obvious situation where this would occur would be in relation to a cohabiting couple where there are children of one cohabitant only, from a previous relationship. However, it could also apply to children who are looked after by family members or kinship carers; as long as they have been acting in a parental role at the time of their death.

“In reality, it is not envisaged that this will create a floodgate of new applicants as there has always been the ‘catch all’ provision that “any person… who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased” can apply for financial provision.”

Further changes are made to the ‘balance sheet’ requirement for applicants who apply under the catch all provision referred to above. Currently, an applicant under that category had to show the deceased was “making a substantial contribution in money or money’s worth towards the reasonable needs of that person”. In reality that meant the applicant had to show the deceased contributed more to the relationship than the applicant did. The requirement from October will be simply to show the deceased made a substantial contribution to the applicant’s reasonable needs.

Finally, there will also be changes to the matters to which the court must have regard to when considering an application under this Act. An applicant who was maintained by the deceased immediately prior to their death can apply irrespective of whether the deceased had formally assumed that responsibility. The court is directed to consider that as a factor but it is no longer a threshold criteria for making a claim.

Finally, Helen commented:

“Despite the new Act being designed to bring intestacy and inheritance laws more in line with the needs and dynamics of modern families, the Act does still stop short of all the reforms recommended by the Law Commission, particularly in relation to cohabitants.”

Helen Dandridge is a solicitor at Ridley & Hall and works in the Contentious Probate department. For more information please contact her on 01484 538421 or by e-mail.

Alternatively, if you have any questions in relation to inheritance disputes, please contact our Contentious Probate team free on 0843 289 4640.

Litigation Team at Ridley & Hall Grows to Deal with ‘Ticking Timebomb’

Ridley & Hall are pleased to announce that Helen Dandridge qualified as a solicitor on 1st September 2014.

Helen, who has a first class degree in law from the University of Northumbria, joined the firm in March 2010. At that point she was working as a paralegal in the Family department before she began her training contract.

She has now joined the Litigation department and will specialise in contentious probate and financial abuse claims, alongside Partner Sarah Young.

Sarah said, “Helen has been an exceptional trainee and I am delighted to have persuaded her to join my team. The work that I do is growing significantly  – I think that’s because of a number of reasons, including the fact that we have an ageing population where dementia is unfortunately a factor.”

Provisional figures from the Health and Social Care Information Centre produced on 30th July 2014 show that 344,000 patients had a recorded diagnosis of dementia in 2013/14. This is a rise from 319,000 in 2012/13 and from 213,000 in 2006/07, when the data was first collected.

Sarah Young sees these figures as telling; “Inheritance disputes, especially those involving a issues about a will maker’s mental capacity, are on the rise. I’m also finding that allegations of financial abuse affecting the elderly and vulnerable often surface after a loved one’s death, when family members find that their inheritance has been siphoned off.”

Helen commented, “I  enjoy contentious probate and Inheritance Act claims because each case is different and it really is an area of law which turns on the facts of the individual case. I also  have a genuine interest in helping victims of financial abuse; cases can be complicated and difficult to prove but I’m determined to make a difference.”

For more information on contentious probate and inheritance disputes, please call Ridley & Hall on 01484 538421 and ask to speak with Sarah Young or Helen Dandridge.

Divorcing? Beware the Death Trap!

Divorce is not the end of the world; death is.  If you are divorced – or are considering a divorce – then there are three things that you need to consider in relation to your estate (your assets and debts) if you die.

1. What Do You Own?

If you jointly own a property and you are married or in a civil partnership then it is likely that you own it as joint tenants.  This means that if one of you dies the other will inherit the property automatically under the “survivorship” rules.

Sometimes couples own property as tenants in common (particularly if they have invested unequally).  This means that if either dies then their share passes according to their Will (or according to the intestacy rules if there is no Will).  If you are divorcing one of the first pieces of advice that you will receive, if you are a joint tenant, is to sever the joint tenancy so that you become tenants in common.

The survivorship rule can lead to some tragically difficult inheritance cases.  For example; A is married to B and they have two young children.  A is the victim of domestic violence and obtains an injunction to remove B from the family home.  B moves in with another woman and makes it clear that he wants no more to do with A or his children.  A is diagnosed with cancer and passes away very quickly, before even being able to take legal advice about a divorce or make a Will.  Her only asset is her half share of the property which passes automatically to B.  A and B’s children live with their aunt and B makes it clear that he has no intention of supporting them.  The children, through their aunt, must then bring court proceedings within 6 months of a grant of probate in order to bring their mother’s half share of the property back into the estate for the purposes of making a claim. Much of the estate is spent fighting the case against B so that the children, even though they win, receive very little.

2. Who Gets What?

While you are going through a divorce, you remain married until the divorce is made absolute.  So if you have made a Will during your marriage in which all of your estate has been left to your spouse and you die before the divorce is made absolute, your spouse will still inherit your estate under the terms of your Will.  If you have not made a Will, the rules of intestacy will provide for your spouse and unless your estate is very substantial they may inherit everything.

Sometimes people think that they do not need to make a Will – that the rules of intestacy will make adequate provision.  However that is often not the case.  By making a Will you are able to say who should administer your estate (be the executor) and make it clear about who is to inherit; you may wish to leave specific items to a particular friend or relative .  A Will also enables you to appoint a guardian to look after minor children and to choose the age at which your children inherit.

3. How to Avoid Post-Death Disputes

No one wants their death to cause a family dispute.  Unfortunately many people do just this by failing to plan for their death and to communicate their wishes to family members.

The recent high profile family war involving the children of the late Lord Lambton is a stark reminder.  Three of the daughters of the late conservative defence minister were said to be “bitterly heartbroken” that a row over his 12 million pound estate reached court 7 years after his death. Lord Lambton resigned from the government in 1973 after being caught with a prostitute.  He moved to Italy and spent the last 30 years of his life there.  When he died in 2006 aged 84 his estate was valued at  £12.1m.  His entire estate was left to his son and heir Edward Lambton the 7th Earl of Durham, but three of his daughters, Lady Lucinda Lambton, Lady Beatrix Neville and Lady Anne Lambton issued court proceedings in Italy on the basis that under Italian law all six of his children would be entitled to a share of his estate.  Their brother, the 52 year old Earl, launched High Court proceedings in London denying their claims and arguing that any dispute should be heard in England.  That dispute has now been resolved and an out of court settlement reached.

That particular dispute, because of the sums involved, may have been inevitable.  For most families the amounts concerned are usually very much smaller which can make it financially extremely risky to bring court proceedings.

It is rarely worth arguing over an estate of, say, £50,000.00 because the legal costs of the parties involved can easily swallow up the estate.  So it becomes all the more important from a practical point of view to understand who is entitled to inherit your estate, what they can expect to receive and (if you plan to exclude anyone) to explain and justify that decision in order to try to prevent litigation after your death.  In England and Wales, children do not have the right to inherit a share of their parents’ estate come what may.  You have the right to leave all of your money to the cat and dog home should you choose!

Although no one likes to contemplate their own death, to make a Will is in fact a practical affirmation of care for your loved ones and as such should be reviewed following any significant change in your life.

If you would like further information about inheritance disputes please contact Sarah Young at Ridley & Hall solicitors: on 01484 538421, 07860 165850 or by e-mail.  Sarah Young is a Partner at Ridley & Hall.  She specialises in contentious probate.  She has a record of bringing the most complex cases to a successful conclusion.

New ‘Guardianship’ Law to Help Families of Missing People

The Presumption of Death Act, which received royal assent in May 2013, put in place the legal framework to enable families of someone who has gone missing to obtain a certificate of presumed death.  That certificate will help families deal with the many legal and financial issues that arise when a person is missing and will be equivalent to a death certificate.  It replaces the current patchwork of legal provisions that can be a very difficult minefield for families to navigate and will come into force in April 2014.

The Act has one major defect however – identified by the Chief Executive of charity Missing People, Jo Youle;

“The absence of “guardianship” provisions means that families currently face a huge ordeal in managing their missing loved one’s affairs.  Ongoing direct debits can drain a missing person’s bank account, some families are forced to pay both halves of a joint mortgage and some families risk losing their homes.”

In response, the government has put forward a proposal to create a new power of guardianship.  The proposals would allow a guardian to be appointed who can manage the missing person’s property and affairs. If they are implemented as planned in April 2014, these provisions will make a significant difference to the families of missing people in the months and sometimes years after someone has gone missing. At present they have no way to make alternative arrangements until their loved one can be presumed dead.

Jo Youle added:

“We look forward to working with families and other partners following this very positive announcement to help ensure the most efficient system for families facing significant practical and financial challenges alongside the distress of a disappearance.”

There is some concern amongst legal practitioners that the procedures under the new Act will be more expensive than at present as a hearing will be required in front of a High Court Judge.  Sarah Young, Partner at Ridley & Hall solicitors in Huddersfield, comments:

“Over the last year I have obtained four ‘leave to swear death’ orders for the families of people that have gone missing.  It’s not always a straightforward process but it does have the advantage that the case is dealt with on the papers alone; no court hearing is required. Once the new Act is in force, in April 2014, the costs of obtaining a certificate will probably increase substantially because a court hearing will be required.  So I would urge families of someone who has gone missing – if they are as sure as they can be that they are not going to return – to apply for a ‘leave to swear death’ order under the current provisions before April 2014.”

She adds:

“Having dealt with a number of cases involving missing people I think that the guardianship proposals will be incredibly important.  It can be very difficult emotionally for families to seek an order confirming that their loved one has died; it can feel like giving up on them. Guardianship powers offer a ‘halfway house’ and will help to protect the assets of missing people.”

Sarah Young is a Partner with Ridley & Hall solicitors. She specialises in inheritance disputes and contentious probate. Sarah has a Masters degree in personal injury law and has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah Young of Ridley & Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538421 or mobile 07860 165850.

“Whaddya Mean?” – Interpreting a Will

Joan Edward’s Will has received widespread media coverage over the last few days. She passed away last December, aged 90 having bequeathed £520,000 to “whichever government is in office in their absolute discretion to use as they think fit.”  The money was divided between the coalition parties based on their number of ministers and MPs.  The Conservatives received £420,576 and the Liberal Democrats, £99,423.

The Daily Mail investigated and criticised the two parties for accepting the money as party political donations rather than using it for the good of the nation.

The solicitors who drafted it (who were also appointed as executors and trustees) stated that when Joan had made her Will, they specifically checked with her that the bequest was to go to a political party. But crucially, the will does not say this – it is a clear example of poor drafting.  One Labour MP branded the coalition’s interpretation of the donation as ‘dodgy’.

After great public and political pressure both the Liberal Democrats and the Conservatives have decided to donate the windfall to the treasury and announced that it would be used to reduce the national debt.

After the money had been handed over to the treasury a Liberal Democrat spokesman said:  “The decision to give the money to the political parties was taken solely by the executors of the Will. The party accepted the donation in good faith.”

Many people reading about Joan’s story will question the purpose of making a Will if it results in disputes between the respective beneficiaries, and those omitted.

Although this case is unique, it highlights the importance of communication between a client and their solicitor when making a Will.  Partner Sarah Young, who specialises in contentious probate at Huddersfield firm Ridley & Hall comments:

“It’s important to seek professional advice when you want to make a Will. As this case shows, it doesn’t always prevent a dispute but it can significantly reduce the risk of a challenge. You should ideally see a solicitor accredited by Solicitors for the Elderly and check your Will carefully before you sign it.”

In relation to the Joan Edwards case she says:

“In this case, potentially the political parties could sue the solicitors for professional negligence – but it’s unlikely that they will given the further bad publicity that would be involved!”

Sarah Young is a Partner with Ridley & Hall solicitors. She specialises in contentious probate law and has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah Young at Ridley & Hall, Queens House, 35 Market Street, Huddersfield, HD1 2HL on 01484 538421 or mobile 07860 165850.

Inheritance Disputes – The Dementia Timebomb

In the UK some 800,000 people are living with dementia; over 64,000 in our region.  Rising property prices, the baby boom and the wealth of the over 50’s have led to an increase in inheritance disputes where it is argued that the person who has made a will did not have the mental capacity to do so, usually as a result of dementia.

Inheritance disputes are often expensive to litigate but when the stakes are high, two recent cases illustrate the lengths that family members will go to, when arguing over a will.

In a recent case Constance Simon, a mother of 4 made her last will at her 88th birthday party in 2005.  She died in January 2009 at the age of 91 and left 3 surviving adult children, her eldest son Jonathan, another son Robert and his twin sister Hilary.  Her assets at the time of her death included a house in St John’s Wood, North West London valued at the time at £1.7 million and a flat in Westcliffe on Sea, Essex worth £262,500.

Her will was challenged by Robert who claimed that his siblings had coerced his mother into changing her will (which originally gave him most of the estate because he had helped run the family business).

From about 2000, before the onset of serious mental decline, Mrs Simon lived with Robert and his wife Michelle.  Prior to that in 1996 she had made a will in his favour, but in December 2005 at her 88th birthday party she made her final will.  Robert did not attend that birthday party – Hilary and Jonathan were there and the will was prepared and executed without Mrs Simon being medically examined and without a solicitor being present.

In court Robert accused his siblings of “sinister and reprehensible” behaviour.  The judge said that as Hilary and Jonathan had benefited from the changes at the expense of Robert. He had been bound to approach the issue of knowledge of the new will and its approval with care, but he did find the evidence of Hilary and Jonathan and other witnesses to be “truthful and substantially accurate”. He rejected the accusations of sinister behaviour in finding that Mrs Simon knew that her existing will did not favour her children and their families equally and wished to execute a will that did so.

Robert’s argument was that the will was invalid because at the time that it was made his mother was suffering from mild to moderate dementia and therefore lacked mental capacity to make a valid will.  Interestingly the judge agreed that Mrs Simon “was not capable of remembering her reasons for preferring Robert in her previous will, or its terms” but he went on to find that to rule that Mrs Simon did not have testamentary capacity “would be inconsistent with the authorities that support the right of elderly people to make a will disposing of their property as they see fit, even if their mental faculties are far from being at their peak.”

The judge went on to say that there “must be many legal cases in which people could no longer remember all the circumstances relevant to the division of their property between the people they wish to benefit.”  His view was that there might be cases where it may be necessary for a testator to understand the different provisions of an earlier will but “this is not such a case.”

Judgement was handed down in this case on 29th May 2013.  Permission to appeal was refused.

Another case which is still ongoing could turn on whether a senior judge finds that Daphne Jeffrey was well enough to enjoy a trip to Wimbledon in July 2007 to see Venus Williams win her 4th title at the Wimbledon women’s final.

The bitter dispute is between Mrs Jeffrey’s two sons Andrew, 50, and Nick, 54.

Nick, who inherited most of his mother’s estate, says that she remained “a delightful old lady” and a “shrewd business woman” right up to the end of her life.  His case is that his mother made a rational decision to cut his brother out of her will after she fell out with him in an argument about the family insurance broking business that they ran together.

Andrew claims that his mother was addicted to prescription drugs, had mental health problems and was very unwell when she wrote him out of her final will two days before the visit to Wimbledon.

Daphne Jeffery died in 2010 aged 77 and left an estate worth approximately £500,000.

Nick Jeffrey’s wife Nicola gave evidence supporting her husband and said that on the day of the trip to the Wimbledon championships her mother in law, who was a keen tennis fan, was in good physical and mental health; “She drove us to Wimbledon and had no problems driving.  We met her husband David outside the centre court … she was fine.  We were there the whole day.  I had no concerns about her at all.  It was a very hot day and our seats were in direct sunlight and we sat there the whole day.”

Andrew Jeffrey claimed that his mother had in fact shown signs of unusual debilitation that day which cast doubt on her soundness of mind when she signed her new will.  He is seeking a declaration that his mother’s will was invalid and that she died intestate; if he is successful then his mother’s estate will be split equally between himself and his older brother.

Dementia is not always easily or quickly diagnosed and in a report recently published by the Alzheimer’s Society, Dementia 2013, The Hidden Voice of Loneliness, a key finding was that only 44% of people with dementia in England, Wales and Northern Ireland have a diagnosis.  This has increased just 3% from last year.

When someone makes a will, if they instruct a solicitor then that solicitor should carry out a capacity assessment to determine whether the person has testamentary capacity – that is, sufficient mental capacity to make a will.  The test is set down in the case of Banks v Goodfellow, a case from 1870 which held that it was essential that “a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

This case continues to be relevant even since the passing of the Mental Capacity Act 2005.

The courts are, generally speaking, very reluctant to set aside a will – it is the last known expressed wishes of the deceased and a judge must be satisfied by the evidence on the balance of probability (i.e. be more than 50% sure that the will is not valid, before it will be set aside).

Very few cases are fought out at trial and each case turns on its own facts so it’s vital not to read too much into case law.  That said it is likely that in the future judges and solicitors will increasingly be presented with cases where it will be argued that the person making a will lacked the mental capacity to do so.  A diagnosis of dementia does not necessary mean that an individual lacks the capacity to make a will.  But it is vital that to protect the will as far as possible, steps should be taken if there is any doubt about capacity including a medical assessment and will advice from a solicitor accredited by Solicitors for the Elderly.

Those seeking to challenge a will after the death of a loved one should consider very carefully what evidence there is in support of the claim and seek advice from a specialist in contentious probate law.

Sarah Young is a Partner with Ridley and Hall solicitors. She specialises in contentious probate and personal injury. Sarah has an LLM in Personal Injury Law and has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah Young of Ridley and Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538421, 07860 165850 or by e-mail.

Presumption of Death Bill Becomes Law

A new law has come into force that offers hope to families of those who have gone missing. The Presumption of Death Bill received Royal Assent on 26th March and is now an Act of Parliament which will help families struggling to deal with the financial legal affairs of a loved one who has disappeared.

Every year more than 2,000 people disappear for more than 12 months – many of them never return. “Missing People” campaigns and supports families of those who have gone missing.  Jo Youle, Chief Executive of  “Missing People” said “This is a momentous day for everyone who has campaigned for, and supported, the reform of presumption of death law.  We are delighted that families facing the unimaginable pain of having a missing loved one will now have access to a fair and effective system”.

The Act establishes a presumption of death law similar to the law that exists in Northern Ireland and Scotland.  The aim of the legislation is to simplify and to bring into one place a “crazy paving” of statutory provision that currently governs the legal processes that families have to negotiate to obtain an order that a missing person is presumed dead.  Only once that order is obtained, at present, can a grant of probate be applied for and the missing person’s estate dealt with on the basis that they are presumed dead. The new Act will provide for a Certificate of Presumed Death and  should make it much more straight forward for a family member to seek a declaration from the High Court that a missing person is deemed to have died.

It is likely that there will be some 30–40 declarations sought in England and Wales every year and the court will have wide powers to deal with the complicated issues that arise. Guidance is currently awaited to help solicitors and families who need to make an application under the Act.

The Act however does not enable families to manage and maintain a missing person’s affairs on the basis that they might return.  During the initial period of a disappearance families very understandably, do not want to assume that their loved one has died and during this period there is currently no statutory provision for helping families.
Ann Coffey, Chair of the All Party Parliamentary Group for Runaway and Missing Children and Adults is aware of the gap in the law and said “We will now continue to campaign for a legal guardianship, which would help relatives to cope with the complicated financial and practical affairs of a relative who has been missing for a short period of time.  The daily frustration of trying to deal with things like mortgage and insurance payments and bank accounts all adds to the stress and heartache of the families left behind”.
Sarah Young,  Partner at Ridley & Hall Solicitors in Huddersfield who specialises in dealing with the affairs of missing people said :Sarah Young, Partner at Ridley & Hall Solicitors

“I am currently acting for 4 families who are seeking a leave to swear death order.  It has been a deeply traumatic and stressful experience for them all and I hope that in the future the process will be made much easier and cheaper.  The emotional stress of coping with the disappearance of a loved one is enormous and families need all the help that they can get”.
Sarah Young is a Partner with Ridley & Hall Solicitors. She specialises in contentious probate and personal injury. Sarah has an LLM in Personal Injury Law and has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah Young of Ridley & Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538421 or mobile 07860 165850.