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Reina
Bizlaw U.K.
3 years ago
Testimonial
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Alison parry 800x800px
JMW
3 years ago
There a various ways in which the validity of a will can be challenged. Perhaps the most common argument is that the Deceased person lacked the relevant capacity at the time of providing instructions for and later executing their last will. But was exactly is testamentary capacity and what is the test for establishing whether or not someone did or did not have capacity? In my article below, I deal with this issue in detail: What is Testamentary Capacity? 23rd January 2020 As average life expectancy increases and the population becomes older, there is an increased risk that the health problems associated with ageing will mean that many of those who seek to execute a Will later in life do not have adequate testamentary capacity to do so. If a court determines that an individual lacked testamentary capacity at the time their Will was drafted and executed, their Will shall be found to be invalid. This blog will explore how testamentary capacity is established and how a Will may be challenged on the basis of lack of testamentary capacity. Testamentary capacity is a legal term that is used to describe a person s cognitive ability to execute a valid Will. The case of Banks v Goodfellow [1870] sets out the test for testamentary capacity in order to execute a valid Will, and is as follows: A testator must: a) Understand the nature of making a Will and its effects, b) Understand the extent of the property of which he is disposing, c) Be able to comprehend and appreciate the claims to which he ought to give effect, d) Have no disorder of the mind that perverts his sense of right or prevents the exercise of his natural faculties in disposing of his property by Will. Where there are concerns with regards to an individual s testamentary capacity and the testator has consulted a legal professional to draft their Will, the legal professional is under a duty to consider as part of their instructions whether they consider that the testator has adequate testamentary capacity in accordance with the test set out above so as to enable them to execute a Will. If there are any concerns regarding capacity it would be appropriate for a legal professional to take steps to obtain evidence from a medical professional that attests to the testator s mental capacity which can be presented as evidence to the court that the individual was capable of making their Will. Whilst this is a potential safeguard that can be put in place where a solicitor drafts a Will, difficulties can arise where a testator drafts their own Will without the assistance of a legal professional. Where this occurs, there is usually no evidence to demonstrate that a testator has capacity nor that any assessment of the testator s testamentary capacity has taken place and it would be unusual for there to be any notes considering the capacity of the testator. Under these circumstances, concerns over testamentary capacity are more likely to arise, leaving a Will vulnerable to a potential challenge on the grounds of lack of testamentary capacity. When considering a challenge to a Will on the basis of lack of testamentary capacity, it is important to note that there is a presumption of capacity and it is for the challenger provide evidence to the contrary. Once the court is satisfied that there are questions to answer in respect of capacity the burden of proving capacity will fall on the personal representatives of the testator. With this in mind, it can be difficult to collect evidence to prove that the testator had lacked testamentary capacity at the time their Will was drafted or executed. Medical or witness evidence can be crucial in determining whether an individual had testamentary capacity at the time of executing their Will, and, where a legal professional is instructed, their contemporaneous notes of their attendance will also offer assistance. If you have concerns that an individual may not have had adequate testamentary capacity when executing their Will or you are the Executor of a Will that is facing a challenge on the basis that the testator lacked testamentary capacity, you should obtain specialist advice and assistance. Challenges as to testamentary capacity can be complex and it is therefore important to seek expert legal advice before deciding whether to proceed with, or defend, a challenge to a Will.
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Alison parry 800x800px
JMW
3 years ago
Where you believe that you or your children have been left out of a loved one's will or have not been reasonably provided for, it is possible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision. In a recent blog, my colleague, Ian Johnston, examines a recent example of where the court is willing to make awards for minor children despite being estranged from a parent. Minor children awarded provision under the Inheritance Act, despite estrangement 18th May 2021 The High Court, on 16th April 2021, handed down judgment in the case of Re R (Deceased) 2021 EWHC 936 Ch. This is an interesting decision concerning a claim under the Inheritance (Provision for Family and Dependants) Act 1975 ( the Act ), made by a mother, on behalf of her two teenage children. Background to this case: Facts In this case, the Deceased ( R ) passed away, aged 41, due to a severe lung problem. R was married to N, but they had divorced in 2012. R and N had two children together, J and H, the teenage claimants in this case. R then had a new relationship with S, the first defendant in this case, up until his death. S was also acting as the sole executor of the estate in question. Following the divorce, R paid for child maintenance in relation to J and H. He missed a payment on one occasion due to being in hospital, and when he made efforts to restore payments, he found that the account he was paying into was shut. Following this, in 2013, there was an application made by N against R, claiming for child maintenance payments. However, R was then informed that the application was no longer being pursued. J and H then moved away with N. Initially, R would speak to his children every week, but contact ceased altogether at some point in 2014. The Deceased s original will was made in 2013. In this will, he appointed his parents, M and L (the second defendants,) as executors, along with the partners at the solicitors firm where he made the will. R gave his shares in his businesses to his parents and the residue of his estate was to be left to J and H. The Deceased subsequently changed his will in 2018. He left shares in both his companies to his parents, (M and L,) and his partner, S. M, L and S were all defendants in this case. In the 2018 will, R made no provision for his teenage children, J and H. When making the 2018 will, R made a statement recording the reasons why he did not wish his children to benefit from his estate. His main reasons were that the children had moved away with N and her new partner to start a new life in Scotland. He also referred to N no longer pursuing him for child maintenance and the fact that he had not been able to get in contact with J and H for three years. He said it was therefore made clear that N did not want him to be a part of his children s life and therefore he did not believe that J and H would require any financial provision upon his death. The Claim N brought a claim on behalf of her teenage children, J and H, under the Act for reasonable financial provision. J and H were the claimants in this case, but as they were minors when the claim was brought, their mother brought the claim on their behalf as their litigation friend. The case was put forward that the maintenance needs of her children following R s death, should be met from R s estate. Court s decision In an interesting decision, the judge found that J and H were entitled to reasonable financial provision for their maintenance, from R s estate. Despite the fact that J and H were no longer in contact with their father, and N had decided not to pursue him for child maintenance payments, the judge still found in favour of J and H. Furthermore, the judge was not convinced by the argument put forward by the defendants that the claimants should not receive anything from the estate because J and H were now being maintained by N and her new partner. However, the judge limited the sum that J and H were to receive to
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Aramas Law
3 years ago
Child Abduction There are still, sadly, too many child abductions away from the primary residential parent, especially to non-Hague convention countries.
1em6zzfdonnr1hxpwosffj9l0uofi4child abduction
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Alison parry 800x800px
JMW
3 years ago
Contentious Probate is a niche area in which only a small number of lawyers have expertise. Claims made under the Inheritance (Provision) for Family and Dependants) Act 1975 or challenges as to the validity of a Deceased's persons will are complex and require specialist input. In his recent blog, my colleague Max Murphy examines the case of Rea v Rea which stands as a good example of why expert lawyers are needed for tricky and complex claims. Rea v Rea: Why complex claims require expert input 16th February 2021 In this case, a claim was brought by Rita Rea ( Rita ) who was the daughter of the Deceased, Anna Rea ( the Deceased ). Rita sought to propound the last Will and Testament of the Deceased dated the 7 December 2015 ( the 2015 Will ). The 2015 Will left some pecuniary legacies to the Deceased s 3 sons; however, the main asset of the estate was a property worth nearly
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Alison parry 800x800px
JMW
3 years ago
Harry Potter Publisher leaves an unexpected Will that may be challenged  perhaps inspired by the Chamber of Secrets! 4th August 2021 Recent reports in America have highlighted the increasingly common situation where people leave their entire estate to non-family members upon their death, much to the upset of their family. Richard Robinson Junior ( the Deceased ) was the owner of Scholastic publishing company, best known for publishing Harry Potter  and Clifford the Big Red Dog,  to name a few. He passed away suddenly in June 2021 and has left, amongst other things, his entire company, worth $1.2 billion, to his lover (who also held a significant role in the company) to the exclusion of his ex-wife and sons. Perhaps unsurprisingly, the Deceased s two sons and his ex-wife are not happy that the entire estate has been left to his former lover, with whom they had never spoken until after the Deceased s death. The Deceased s sons are currently considering their legal options and, while any action would take place outside of our jurisdiction, the facts are certainly similar to many scenarios that we come across under the law of England and Wales. Under English law, the principle of testamentary freedom is key when a person is making a will and considering who to leave their estate to upon their death. In theory and subject to certain exceptions, you can therefore leave your estate to whoever you wish, including non-family members, charities, etc. However, as you would expect, this can leave many disinherited family members disgruntled and some may be in a position to challenge a will. Under English law, certain categories of people can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 ( the Act ) if it is considered that a will has not made reasonable financial provision for them. Children of the deceased can make a claim under the act, such as Mr Robinson Junior s sons, as well as for example spouses and former spouses (who have not formed a subsequent marriage.) The court considers several factors when exercising its discretion to consider such claims and the focus is often whether any applicant is in need of financial provision for their maintenance. For example, in a case with facts like that of Richard Robinson Junior and with an estate value of the likely level here, one of the factors that the court would look at if the dispute were in England or Wales is whether the Deceased had maintained his children financially during their lifetime and also their individual financial circumstances. Furthermore, they will also consider the large size of the estate and the fact that the Deceased had become closer to his children and ex-wife again prior to his death and after his Will was executed. These factors would be considered on a case by case basis to determine whether any award should be made in favour of those excluded from a Will. A scenario like this highlights the importance of individuals discussing their wishes with family members before they die so that they are aware of the provisions and the reasons why such decisions have been taken. This would prevent a secret will being discovered after death which may be surprising and upsetting to family members and may result in expensive and uncertain litigation.
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David Wylde
3 years ago
Listen
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David Wylde
3 years ago
Court date
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David Wylde
3 years ago
At IAC Hatton Cross today on an appeal hearing
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Alison parry 800x800px
JMW
3 years ago
I am often instructed in matters where the validity of a Deceased person's will is challenged. One of the more common grounds for disputing the validity of a will, is that the person lacked the capacity at the time of preparing and executing their last will. I have recently co-authored a blog on the very recent case of Hughes v Pritchard where capacity was an issue. The court's decision was an usual one, the significance of which is discussed below. Hughes v Pritchard: How far do you need to go to establish capacity? 12th July 2021 If it is considered that a deceased person lacked testamentary capacity when making a will, and the validity of the will is therefore brought into question, then a person may bring a challenge to try and overturn the will. In an interesting and arguably unusual decision, judgment was handed down in the case of Hughes v Pritchard (2021 EWHC 1580 Ch) on 11 June 2021. Despite the solicitor who drafted the will following the Golden Rule,  and there being a GP and expert report concluding that the Deceased had capacity at the time they executed their Will, the Judge still ruled that the Deceased lacked capacity at the time. The Golden Rule When drafting a will for a client, it is always important for solicitors to ensure that their client has testamentary capacity, as set out in the test in the well-established case of Banks v Goodfellow, to ensure the will is valid. This is particularly important where the client is elderly, vulnerable or seriously ill, where the possibility of capacity issues are more likely to arise. The law provides further guidance in relation to this, with the Golden Rule  of will making, as provided for in the case of Re Simpson [1977] 121 SJ 224. This rule provides that in the case of an elderly or seriously ill person who wishes to make a new will, the solicitor should seek the opinion of a medical expert regarding the person s capacity to make a new will. This was of importance in the case of Hughes v Pritchard. Background This case concerned the estate of Evan Richard Hughes ( the Deceased ) who died in March 2017, and the source of the dispute was his last will dated 7 July 2016 ( the 2016 Will. ) The Deceased had three children, Gareth, Cerys and Elfed. Elfed unfortunately predeceased his father, in tragic circumstances. In his previous will, ( the 2005 Will ) the Deceased left his shares in a family business to Gareth and Cerys and left all of his farm land to Elfed. Throughout his life, Elfed had always been told that he was being left the farm land, and in reliance of this promise, he worked very long hours on the farm, as well as working for the family company. For many years, the Deceased had made all of his children aware of what would happen with his estate upon his death. Shortly after the death of Elfed, the Deceased changed his will and created the 2016 Will. At this time, the Deceased was said to be suffering from moderate to severe dementia. The main change made in the 2016 Will was that his son Gareth would now inherit the majority of the farmland, with the residue being left to Elfed s widow, Gwen. The solicitor dealing with the 2016 Will arranged for a capacity assessment to be carried out in relation to the Deceased, before the new will was to be executed. This was in accordance with the Golden Rule. The doctor providing the assessment was provided with a copy of the proposed 2016 Will and the existing 2005 Will. Following a meeting with the Deceased, the doctor confirmed that he had no concerns as to the capacity of the Deceased to change his will, and that he would be happy to act as a witness. Claim Following the Deceased s death, Gareth, who had benefitted from the change, sought to propound the validity of the 2016 Will. However, the Defendants (the Deceased s daughter and Elfed s widow and son,) brought a counter-claim, arguing that the 2016 Will was not valid as the Deceased lacked testamentary capacity at the time it was made, by reason of his dementia. Decision Despite there being both a GP report and expert report confirming that the Deceased was considered to have testamentary capacity when making the 2016 Will, the Judge held that the deceased in fact lacked testamentary capacity when making the 2016 Will, and therefore the previous 2005 Will was to be taken as his last Will. Further, despite the solicitor who drafted the 2016 Will having followed the Golden rule, as well as there being a GP report and expert report, the Judge held that applying the Banks v Goodfellow test for testamentary capacity, the Deceased did not have the relevant capacity to appreciate the understanding that he had with his son Elfed over the years in connection with the farmland, and his subsequent reliance on this. The Judge also concluded that he lacked the capacity to be able to fully understand the extent of the farmland, and to further understand that the changes in the 2016 Will were more than just minor changes to the 2005 Will. In addition to this, the Judge also relied on the fact that in giving evidence, the GP subsequently placed doubt on the reliability of his own account when providing the capacity assessment, as he too had not been made aware of the extent of the changes which the 2016 Will would encompass when compared with the 2005 Will. He initially believed that the Deceased was only making small changes to the original 2005 Will and that distinction may have changed his view on capacity at the time. Significance This case serves as an important reminder in the case of validity challenges, that capacity reports remain persuasive evidence, but are not determinative. Even in the presence of seemingly convincing evidence from a GP and an expert that the Deceased had capacity, this was still not enough to prove capacity in this case. Just because you have a capacity report does not necessarily mean that there can be no successful challenge to the validity of the will. This arguably adds to the inherent uncertainty and costs risk associated with going to court in such cases. The case also highlights the importance of providing complete and comprehensive instructions to a healthcare professional when obtaining a capacity report. For example, there should be clear details provided as to the extent of the changes to any will, as this could impact their assessment of capacity as the extent to which changes are made could be significant. In this case, it wasn t just a minor change to the will, but instead a major asset (ie the farmland) was being redirected and was worth almost
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Alison parry 800x800px
JMW
3 years ago
I often get asked what the difference is between mutual and mirror wills. My article below explains exactly what they are and the advantages and disadvantages of both. Mutual Wills and Mirror Wills 10th January 2020 Mirror wills and mutual wills offer a combined approach to the distribution of shared assets between those in a relationship. These wills can assist with the distribution of the estate in accordance with the wishes of both parties, but can also impose restrictions that can affect the future wishes of either party. Therefore it is important that any joint approach to drafting wills is careful considered to ensure that both parties fully understand their respective wills and how they will operate to provide for their loved ones. If this is not the case, it is more likely that disputes may arise. JMW have been involved in a number of cases where disputes arise after someone has died as a result of a failure to consider the correct approach at the time of will drafting. Mirror Wills Mirror wills, as the name suggests, largely reflect the terms of a spouse s or partner s will. They are usually drafted to distribute the estate to the surviving partner upon the death of the first partner, and make provision for any children by directing that the surviving partner passes assets on to the children upon their death. However, wills in these specific terms are becoming less common as families become more complex, with people making wills with their partner perhaps having children from previous relationships who they may wish to provide for in their will. In cases such as these it is not always practical to have wills with identical terms, as this may mean that parties are excluded. Similarly, if the makeup of assets belonging to the parties are complicated, or the assets belonging to each party are vastly dissimilar in value, then a mirror will in these terms may not be appropriate. Furthermore, with mirror wills in place, there is no guarantee that the surviving partner will not simply change their will after the death of their partner, in line with the principles of testamentary freedom. This can leave the surviving partner s will subject to dispute and defeats the intention around the drafting of the mirror wills, namely that the first partner to die knows that their children will receive an inheritance on their partner s death. Therefore, when creating mirror wills, a strong element of trust is required between the parties that their surviving partner will honour their wishes, and if this is not the case, disputes can arise. Mutual Wills In order to address these deficiencies regarding mirror wills, one alternative is to draft mutual wills. This is when two people prepare wills on the agreement that they will not be revoked by the survivor of them. This can provide reassurance to the parties as they will know that whoever passes away first, their wishes will be complied with. However, this can also bring complications for the surviving partner, for instance if the surviving partner remarries or has more children, or they dispose of assets during their lifetime which are given as legacies in a will. Due to this, despite the advantages they would appear to create in terms of certainty of distribution mutual wills are far less common. Potential solution? One solution to the issues identified above is to draft a mirror will with a life interest trust. This can safeguard the assets under the trust and ensure that they are distributed in line with your wishes to the intended beneficiaries. For example, if both partners share ownership of a property, one partner can leave a life interest trust to their child/children in which their portion of the property will go to their child/children subject to their partner having the right to live in the property for the rest of their life. This means that even if their partner went on to remarry and have more children, the trust would provide reassurance that the assets would be left to the beneficiaries that are intended under the trust. Therefore, it is very important to seek professional advice when considering drafting mutual wills or mirror wills, particularly where trusts may be involved. It is also important to seek professional advice if you are planning to contest a mirror will or a mutual will or if you are the beneficiary or Executor of this nature that is facing a challenge. Should you find yourself involved in a dispute, JMW Solicitors offers specialised, expert advice that is tailored to your circumstances. Please do not hesitate to contact the team to discuss how we can be of assistance.
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David Wylde
3 years ago
On unresolved EU applications.
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Alison parry 800x800px
JMW
3 years ago
Last week saw the release of Chambers and Partners High Net Worth Guide 2021. Chambers and Partners Private Wealth Disputes rankings table identifies the leading professional advisers to the Private Wealth market in North West. Their research into the top ranked firms provides all the relevant information required when looking to procure legal or other advisory services. Chambers Research is conducted by 200 Research Analysts, across 200 jurisdictions and provides nearly 6,000 rankings tables. Annually, they collect hundreds of thousands of responses from clients, the majority via in-depth interview. This year my team was ranked top tier in "Band 1" and the firm was described by one interviewee as being a "professional, modern firm delivering expert advice". On a personal level, I have been ranked as a "Band 2" individual with one interviewee saying "Alison Parry is one of the best litigators in Manchester" and "her strengths are her obvious expertise, her capability and her empathy". If you need expert legal advice and practical support in relation to disputes concerning wills, trusts and inheritances whether that be in your capacity as an executor, trustee, beneficiary, or someone who feels they ve not been provided for either within a will or in a trust, we can help you. Alternatively, if your loved one did not leave a will and as a result you have been excluded from their estate, then it may be possible to claim on their estate. If you are looking for assistance in a dispute concerning someone s estate, get in touch with my dedicated team today.
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Alec Hancock
3 years ago
Most appeals are drafted by Barristers (who usually had conduct of the hearing which is being appealed or will conduct the appeal), however in my holiday sickness case the trial Barrister didn t think my clients had sufficient prospects of success. So I drafted the Appeal, which led to the Appeal Judge granted permission and my clients succeed at the appeal hearing, overturning their loss and turning it into a win. https://holidaysicknesslawyer.com/case-study/
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Alec Hancock
3 years ago
I took over a Holiday Sickness case where the previous law firm decided they could no longer proceed on a No Win, No Fee basis. The claim was weeks away from limitation but I agreed to take it on. I would have been able to provide Trial Advocacy in house without the client being responsible for a Barrister s fee (and Barristers rarely offer No Win, No Fee agreements). The Defendant is now settling, something the Clients wouldn t have been able to do if they didn t come to me. The previous law firm would have just closed the file www.holidaysicknesslawyer.con
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Alison parry 800x800px
JMW
3 years ago
My article below discusses Fraudulent Calumny, a further ground upon which a will can be challenged. Please continue reading for an analysis of what fraudulent calumny is and how you can prove it if you find yourself in such a situation. Fraudulent Calumny 9th April 2020 What is Fraudulent Calumny? Fraudulent calumny is a lesser known ground on which to challenge a Will. It is similar to undue influence in a number of ways, but in order to establish a case of undue influence, you must establish that the testator has been coerced to draft their Will in a certain way. Fraudulent calumny on the other hand has a more subtle effect. In a case where fraudulent calumny has occurred, the testator makes their Will of their own volition, but their perception of a potential beneficiary has been altered by another beneficiary and this has affected the way in which they have drafted their Will. Case law has established that fraudulent calumny occurs where person A poisons the testator s mind against person B, who would otherwise be a natural beneficiary of the testator s estate, by casting dishonest aspersions on person B s character. Person A must know that the information they are giving the testator is untrue, or not care whether or not it was true, so that when the testator drafted their Will they did not do so in the knowledge of true facts. This is often explained as someone poisoning the mind of a testator about a particular person in order that the testator then freely excludes them from their Will. An Example - Christodoulides v Marcou [2017] Fraudulent calumny is better explained with reference to an example. In the above case it had always been the intention of the testator to leave her estate equally between her two daughters and to this end she decided that she did not want to draft a Will, but would allow her estate to pass in accordance with the Intestacy Rules, meaning that it would be split between her two daughters as she had no spouse. However, one of the daughters, Niki, attempted to poison the mind of her mother by telling her that her sister had stolen
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JMW
3 years ago
A Will can be challenged in numerous ways; however, one of the more exciting areas is forgery. There has been increase in the number of cases coming before the courts and my colleague, Claire Brierley, examines a recent High Court decision concerning forgery. Her article is set out below: Wrangle v Brunt: helpful guidance on what evidence will be taken into consideration when determining an allegation of a forged Will 13th May 2021 In this case the master in the High Court Chancery Division was satisfied a Will had not been forged, but interestingly, the Appeal Court deemed the Judge in the first instance to have erred in their approach when arriving at this conclusion. This is a controversial ruling that provides guidance on what will be taken into account when determining a forgery claim, and the significance of expert evidence. Facts of the case Mr Brunt passed away in 2007 and his mother believed he died intestate and so obtained letters of administration and administered the deceased s estate under the rules of intestacy. However, in 2017, ten years after the deceased passed away a Will purportedly belonging to the deceased was discovered in a consultant s office. The Will was signed by the consultant purportedly at the direction of the Deceased. A named beneficiary in the Will then claimed the estate ought to be re-distributed in accordance with the Will, and not the rules of intestacy. Mr Brunt s mother and brother disagreed, believing the Will to be a forgery created after he died, and raised concern regarding the consultant s previous conviction for fraud. Days before the trial took place, an additional copy of the Will was discovered. Both signed by the same consultant, but both signatures appeared to look slightly different and so handwriting experts were requested to give evidence at trial. The consultant s evidence in defending the claim involved; two signed Wills; two attendance notes detailing his appointments with the deceased; and one diary entry indicating when the Wills had been signed Unfortunately, the Consultant passed away prior to the trial taking place. The High Court s decision This is a case that suffered directly as a result of the impact of the Covid-19 pandemic and the lockdown the UK faced back in March 2020. Therefore the length of the hearing was shortened from the recommended eight days to three days so only key witnesses were cross-examined and the handwriting expert testimony was thereafter withdrawn. The task for the High Court was to establish whether or not the Wills were in fact signed in 1999 without the testimony of handwriting experts. Master Teverson adopted Parsonage (Deceased), Re [2019] EWHC 2362 (Ch) in his approach to assessing the evidence and making of finding of fact. In Parsonage, reliable contemporaneous documentary evidence was taken as a platform for fact-finding, adding to that known, established or probable facts, and then building further with witness evidence which was consistent or compatible with that underlying body of reliable documentary evidence. Master Teverson took the disputed evidence provided by the Consultant first and used this as a platform to find if witness evidence was consistent with his findings. In his reserved judgment, he stated the deceased s sister and uncle were impressive witnesses, that the mother was unimpressive, and that he had taken into account the Consultant s bad character. By adopting the Parsonage approach, the master held the Will to be a valid legal document on the assessment of the evidence and facts. The significance of this decision suggested there ought to be a focus on contemporaneous evidence instead of a reliance on expert evidence. The claimants in this case subsequently sought to appeal this decision and an appeal was allowed. Court of Appeal judgment In an interesting Court of Appeal judgment, Michael Green J concluded Master Teverson had erred in his approach by applying Parsonage and using unreliable contemporaneous documents as the basis for his consideration. Going further, he added the master had failed to weigh the evidence against factors that indicated the Will was a forgery and had given insufficient weight to the expert handwriting evidence. As such, there should have been a balancing exercise considering the aforementioned. It was wrong to use the disputed evidence as a starting point and then to use witness evidence to find out if this was consistent. The attendance notes and diary entry were considered to be reliable contemporaneous documents however since they were challenged to be forgeries they were thus unreliable and should not have been used as a starting point. In reaching the decision, the High Court should have focused on the witnesses, their possible motives for lying (Armagas Ltd v Mundogas SA (The Ocean Frost) [1985]), and the extent to which the court had relied on their demeanour. The master was also unclear as to why he found the deceased s sister and uncle impressive witnesses, yet not the mother. Additionally, he failed to clearly explain what he meant when he said he had taken the Consultant s bad character into consideration. A serious flaw in his judgment was not accepting the expert evidence in this case. He rejected the evidence on the grounds that it did not fit with his findings of fact, despite the evidence strongly indicating the Will had not been signed in 1999. The handwriting experts were both satisfied the Wills had not been signed when the Consultant suggested, that they had been drafted on separate occasions, and that the diary entry had also been added at a later date. On the above grounds, the court had no option but to order a re-trial. Conclusion The Court of Appeal judgment helps to provide guidance on how a Judge should approach evidence in cases similar to this one in the future. The re-trial will take place before a High Court Judge on a date to be fixed by the court shortly and it is well-worth keeping a close eye on seeing how this one unfolds.
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JMW
3 years ago
Contentious Probate is a specialised area of law which requires in depth, expert knowledge. In his article dated 4 March 202 (see below), Ian Johnston, discusses what exactly Contentious Probate is and why expert legal advice is required. The Importance of Seeking Expert Legal Advice 4th March 2020 Contentious Probate is an area of law that involves disputes concerning the estate of someone who has passed away. Disputes can arise for a number of reasons, including but not limited to: Disputes regarding the validity of a Will; Disputes over the value of assets within the Deceased s estate; Disagreements between beneficiaries and executors of a Will; and Concerns regarding an executor s conduct and whether they are acting in line with their duties. Contentious Probate is a specialist area of law that requires in depth, expert knowledge. Whilst there are many law firms that assist with drafting Wills and the administration of estates of individuals who have passed away, it is important to note that where a dispute arises over the estate of someone who has passed away, this constitutes a separate and distinct area of law which has its own rules and procedures. Therefore it would not be appropriate to instruct a Private Client solicitor or a commercial litigator to assist with your matter if they do not specialise in the area of Contentious Probate as they would be unfamiliar with the rules and procedures that are specific to this area of litigation. If you are seeking legal assistance with a contentious dispute over the estate of someone who has passed away, it is important to make sure that you are seeking specialised legal advice from professionals who are experienced in this area. As an example of what can happen when parties who are unfamiliar with Contentious Probate matters fail to seek specialist advice in recent news, a solicitor who was the head of a Private Client department was struck off for acting dishonestly in making misleading statements to beneficiaries. This occurred following a dispute between two executors concerning the estate assets, one of whom was a client of the solicitor in question. Despite the fact that this solicitor did not specialise in Contentious Probate, he did not refer the matter elsewhere and proceeded to act for his client in relation to this dispute without consulting specialists. Unfortunately, the solicitor ended up providing false information to the beneficiaries of the estate as to the progress of an application, describing himself as out of his depth on this particular case . Ultimately the solicitor s conduct was referred to the Solicitors Disciplinary Tribunal and he was struck off the roll of solicitors. The above is an example of how a competent and well respected solicitor can struggle and find themselves in unfamiliar territory if they take on Contentious Probate matters where they do not have the specialist knowledge of these types of proceedings. Whilst the solicitor s conduct in this matter was not malicious, it still resulted in him being struck off. If you are involved in a dispute regarding the estate of someone who has passed away, it is important that you instruct specialist legal assistance to ensure that you receive appropriate legal advice and assistance. At JMW, there is a Contentious Probate department which deals with disputes of this nature, please do not hesitate to contact us to discuss how we can be off assistance.
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David Wylde
3 years ago
Family is everything.
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David Wylde
3 years ago
For quality immigration advice in the right direction, you should speak with me first.
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