Where there's a Will, there's not always a way

12 June 2018

Making sure our or our loved one's final wishes are met can be more difficult than we expect. With a rise in cases that contest against Wills, we strongly advise gaining legal advice if you want to go down this route

There is no doubt that we must all make a Will, presided over by a legal expert, in order that our final wishes are met.

However, such documents, while official and binding, can be contested and such action is becoming increasingly common. In fact, figures obtained by one national newspaper revealed how, in the early 2000s, there had been a 700 per cent rise in the number of such actions launched at London’s High Court.

It is a recent High Court hearing that I wish to highlight, which saw defeat for a son determined to contest his late father’s Will. Held in Leeds and presided over by His Honour Judge Mark Raeside QC, the case involved a brother and sister, and the Will of their late father. As a member of the Wills & Inheritance Disputes team here at Wilkin Chapman I had the privilege of acting for the successful daughter in this claim.

The father had made various Wills in the past and was living with his son until 2011, when he made the decision to reside with his daughter. It was around this time that his Will was changed to the exclusion of his son.

Added to that, a year later in 2012, the father was diagnosed as suffering from dementia and subsequently died in 2014 – with the entirety of the father’s estate passing to his daughter.

The son maintained two allegations:

  • His father lacked capacity to make a Will at the material time owing to the onset of dementia;
  • The daughter had exerted undue influence over her father which overpowered his wishes.

This resulted in the daughter being forced to issue court proceedings for a declaration that her father’s 2011 Will was valid.

After hearing all factual evidence at trial, His Honour Judge Mark Raeside QC was unable to find any case which would have raised a single doubt about capacity and further held that the son had been unable to satisfy the test which is to be applied in cases of undue influence. Accordingly, judgment was granted in the daughter’s favour, with costs awarded.

This is a timely reminder of how things can go wrong and the ‘high threshold’ that must be met when looking to challenge the validity of any Will, especially when arguing undue influence.

If you are looking at such matters, then please seek appropriate legal advice. It may well save you from a lot of anxiety and financial stress in the long run.

For further information, please contact Gino Ballestracci on 01472 265997, email gino.ballestracci@wilkinchapman.co.uk.


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