By Jamela Collins, Technical Underwriting Manager at Legal Futures Associate Temple Legal Protection [1]
The case concerns a handwritten Will made in 2020 by the deceased`s former husband which was made less than a month before her death which left him her entire estate and revoked a professionally drafted Will made in 2012.
The main beneficiaries of the 2012 Will challenged the validity of the 2020 Will due to the deceased`s poor health and lack of professional assistance in the making of the Will and concerns about the Will`s execution and discovery.
The Deceased, passed away in May 2020. She left a Will executed in December 2012 (the 2012 Will), but later another Will dated 4 May 2020 (the 2020 Will) was discovered.
The matter concerns the validity of the 2020 Will prepared by the Deceased’s former husband, the Defendant.
The Deceased and the Defendant divorced in 1989 but continued living together in the same home After the divorce, the Claimants stated that the Deceased and the Defendant’s relationship was platonic.
The Deceased then had a relationship with another man she planned on marrying before he died. However, the Defendant maintained they continued to live together as a married couple after the divorce.
2012 Will
Mr A, a solicitor who knew and drafted the Deceased’s previous Wills, prepared the 2012 Will. Mr A was instructed by the Deceased as follows:
- She wished to leave the Defendant the property.
- The Claimants would receive the residue of the estate, including another property in the 2020 Will .
2020 Will
The 2020 Will appointed the Defendant as the executor and trustee of the Deceased’s estate, and the Defendant inherited the entire estate.
The Claimants averred that the 2020 Will was invalid because the Deceased did not approve or know about the existence of the 2020 Will for the following reasons:
- On 22 May 2020, the Defendant mentioned to Mr A he could not find the 2020 Will.
- The Defendant discovered the 2020 Will inside a packet of incontinence pads from when the Deceased was using a catheter at the time.
- The Deceased was seriously ill around 4 May 2020. Therefore, the Deceased was not in a condition to dictate and sign a new Will.
- The 2020 Will was not prepared by Mr A, who drafted the Deceased’s previous Wills.
- The Defendant’s friends witnessed the 2020 Will, and one of the witnesses, refused to give the police a statement.
On the other hand, the Defendant argued the following:
- The Defendant sought to honour the Deceased’s wishes, and the Claimants’ motives are purely financial.
- The Defendant was the Deceased’s primary carer. Therefore, finding the Will in the packet of incontinence pads was not unusual.
- The Deceased would have been able to sign the Will because she was known to use both hands and toes to write.
- The Deceased asked the Defendant to prepare the 2020 Will, and he did so to fulfil the Deceased’s wishes.
- The Defendant was confident that the deceased does not support the Claimants’ position.
Strengths
- The Claimants’ arguments appear strong. There are several points that challenge the Defendant’s honesty.
- The Claimants have several supportive witness evidence to support their claim.
In Face v Cunningham, the court found that the burden rests on the party asserting the Will is valid. The party must establish that the Will was validly executed and witnessed. In these circumstances, the Defendant may find it challenging, particularly if MW refuses to provide a witness statement.
Weaknesses
- The standard for establishing forgery is high. The Claimants needed to persuade the court that forgery has occurred.
- The Defendant put forward a vehement case by way of inter partes correspondence that the 2020 Will was validly executed.
- If the Defendant seriously challenges the matter, costs and coverage may increase.
- The Claimant sought a declaratory remedy: propounding the 2012 Will. The value of the Property was £160,000. However, the value of the remainder of the estate was unknown.
The Claimants sought £47,000 of ATE insurance cover.
The Temple perspective
We are pleased to have been able to support the Claimants and to say the case settled with the court pronouncing in their favour – the 2012 Will was valid, and this was the Will admitted to probate.
There were concerns that if the Claimants failed in proving that the 2020 Will was not valid, they would then be facing a large costs order.
The case itself highlights the importance of having ATE cover in place, particularly as the value of the estate was modest. We at Temple were able to provide a proportionate premium solution to assist with the running of the case.