Inheritance Act Claims
Case Study One
Our client’s son died suddenly and unexpectedly. He did not leave a Will. He was living with his partner with whom he jointly owned a house. They had a life policy which was for the large amount outstanding on the mortgage. Under the intestacy rules our clients stood to inherit but the deceased’s partner claimed that the property should pass to her by survivorship. The life policy was paid out to her. She also claimed that if our clients were entitled to the estate then she had a claim under the Inheritance Act as under intestacy no adequate provision was made for her. If the partner’s case was accepted our clients would have received little or nothing. The deceased’s partner issued proceedings which were defended and the matter was eventually compromised on the basis of a considerable payment to our clients whilst permitting the deceased’s partner to remain in the property.
Case Study Two
Our client had lived with her partner for 8 years when he was killed in a motorcycle accident. As he had not left a Will everything he owned went to his parents under the intestacy rules. They did not want our client to receive anything from the estate. We issued an Inheritance Act application and, despite the fact that there were issues as to whether our client had lived with the deceased permanently for the last 2 years of his life we were able to settle the claim for a considerable payment to our client from the estate.
This matter was complicated by the fact that our client had a potential claim for damages against the driver of the vehicle which killed her partner and we had to devise a settlement which would take into account any damages that our client received in that action. We acted for a farmer’s wife who had become estranged from her husband in the last couple of years before his death. Her husband had left her very little in his will dividing his farm up between his children. Our client did have assets from the marriage such that it was arguable whether reasonable had been made for her but with expert accountancy and investment advice we were able to negotiate a settlement which meant that the overall size of the estate was enhanced, that the farm was protected, that our client received better investments and more income and, most importantly from our client’s point of view, her relationship with her children was preserved.
Testamentary Capacity
Case Study One
The deceased had made a number of Wills leaving her assets jointly between her two children. She then moved to be closer to her son for the last 6 or 7 years of her life. About 18 months before she died she made a new Will leaving all her estate to her son. She had already put her house in trust and indicated that she was happy that the trust should remain sharing the proceeds of her house equally between her 2 children.
The validity of the Will was challenged on the basis that the deceased was suffering from Alzheimer’s decease when she made the Will and did not satisfy 2 limbs of the capacity test, that of knowing the extent of her estate and in particular that she suffered from a disease of the mind.
The challenge to the Will was strongly resisted. We sought early resolution through a mediation and achieved a very satisfactory agreement that our client would receive a reasonable proportion of the estate.
Case Study Two
The deceased made a home made handwritten Will shortly before dying. He left everything to his second wife. His children from the first marriage challenged the validity of the Will and obtained handwriting evidence that indicated it was highly probable that the signature was not his. Proceedings were issued challenging the Will, seeking to have the court pronounce against the validity of the Will. Acting for the second wife we obtained evidence from the 2 witnesses to the will and despite the expert evidence were able to successfully defend the claim and reach a settlement whereby the challenge to the Will was defeated and the Will was admitted to probate and our client therefore inherited the entirety of the estate.
Disputes over administration
The testator died intestate leaving a number of siblings who could not agree between them who should be the administrators. They could not agree and 2 applications were made. We attempted to persuade the other applicant of the merits of our clients’ application but they would not withdraw. The registrar ordered that our clients issue a summons. We drafted supporting affidavits to go with the summons. On reading the papers the registrar took the unusual step of writing to the other side making it plain that she had sympathy with our approach and that the other side were at risk of an adverse costs order if they continued to resist our clients’ application. As a result they capitulated and our clients were awarded the grant of administration without the need for, and costs of, a full hearing.
Other Cases
The testator died leaving a small estate to his children. The children believed that the grandparents had taken their father’s money and possessions without their father’s permission. The grandparents denied this and argued that anything given to them before death had been freely given. There is a presumption in such circumstances that such gifts are held on resulting trust. The children demanded that the grandparents hand over all sorts of documents. We advised the grandparents to provide some but not all of the documents sought. The children were not satisfied with this and issued an application for pre-action disclosure. We advised the grandparents to fight the application and the claim was defeated with the children ordered to pay the grandparents’ costs much to our clients’ relief.
