Mrs R was the daughter of Mrs W who died on in April 2011 leaving Will dated July 2006. Under the terms of her Will she appointed her son (T) and his wife (S) as executors. Having gifted £100 to Mrs R the residue ( a relatively modest amount) was left to T and Mrs W’s other son (Sh).
It was Mrs R’s case that the 2006 Will was not valid due to T and S exercising undue influence over Mrs W. they also alleged that Mrs W lacked the testamentary capacity to execute the Will due to deterioration in her mental capacity as a result of an Alzheimer’s diagnosis in 2003.
Mrs R proceeded with a secondary claim (if the first were to have failed) for ‘reasonable financial provision’ under section 1(1)(c) of the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”). She was eligible to pursue the 1975 Act claim as she was a child of the deceased.
In support of her validity claim Mrs R relied upon evidence that the deceased’s MMSE (Mini Mental State Examination) score was 21/30 at the last test before the Will was signed and had shown a pattern of decline. Further, she relied upon the fact that a COP3 (court of protection) form had been completed by Mrs W’s Doctor in February 2009 stating that Mrs W’s capacity had been worsening since at least February 2007 (only 7 months after the Will was executed) and had not improved for five years, i.e. since February 2004.
In addition, evidence was relied upon showing that T and S had motive and opportunity to influence the deceased to execute a Will in T’s favour (and excluding Mrs R) when they discovered a number of lifetime gifts had been made to Mrs R by her parents to help her in times of financial difficulty. T and S’s clear view was that Mrs R had already had her inheritance.
Mrs R relied upon the following subsections of section 3 of the 1975 Act in support of her secondary claim:-
3(1)(a)- her financial need for provision (particularly her current and future needs including a need to move house and the associated costs of doing so) as compared to;
3(1)(c)- T and Sh’s lesser need for provision;
3(1)(e)- the estate was of a sufficient size to make provision for her
3(1)(f)- her disabilities necessitated that sufficient provision should be made for her; and
3(1)(d) and (g)- the deceased’s conduct in financially supporting her over many years gave rise to an obligation to make provision and was relevant conduct which the court should factor into the balancing exercise of the remaining factors.
It was not necessary to commence court proceedings. Instead a letter of claim was served with an offer of settlement. A letter of response was received with the parties eventually achieving settlement through correspondence without the need for mediation.
The parties agreed to payment of legal costs out of the estate and then to split the remaining net estate 3 equal ways between Mrs R, T and Sh.
This is not an uncommon example of one parent being “encouraged” to change their will following the death of the first parent as a result of one of the children being unhappy with financial support provided to remaining siblings while both parents were alive. To the extent that this “encouragement” becomes pressure to do so, and particularly when coupled with a diagnosis of Alzheimer’s, there is a good chance that a Court will find such a Will suspicious and thus liable to be declared invalid. These claims are not without their risks but this case serves as an example of how obtaining enough background evidence to support the allegations in correspondence can head off costly court proceedings and enable the parties to settle on a basis that is as close to “fair” as possible – something that becomes all the more difficult once the legal costs mount up and the court gets involved.
If you wish to contest a Will on the basis of undue influence or lack of testamentary capacity, or if you think you may have a valid Inheritance Act claim then contact us now for a free, no obligation assessment of your case. Call 0808 139 1596.