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by • October 22, 2015 • Probate, WillsComments (0)144

WILLS AND PROBATE CASE LAW UPDATE, Oct. 2015

NOTE: This article was published in October 2015 and reflects the law as it stands on the date of publication and not at any later date. It is taken from a Fusion Legal Wills & Probate seminar presentation.

To download the original slideshow of this presentation please click this link.

TESTAMENTARY CAPACITY

  • Test in Banks v Goodfellow (1870) LR 5 QB 549, at 565
  • Test in Mental Capacity Act 2005
    • Presumption of capacity
  • Re Walker [2015] WTLR 493
    • No presumption of capacity
    • Retrospective assessment of capacity
    • Legal burden on claimant

CAPACITY TO UNDERSTAND

  • Simons v Byford [2014] EWCA Civ 280
  • Capacity to understand
    • Not actual understanding
    • Nor test of memory
  • No need to understand collateral consequences
  • Brennan v Prior [2013] EWHC 2867 Ch
    • No need to understand every consequence of legal effect
  • Incapable if cannot recall beneficiaries: Williams v Wilmot [2012] EWHC 2211

SOLICITOR’S OPINION ON CAPACITY

  • Hawes v Burgess [2013] EWCA Civ 74
  • Strong evidence of incapacity required
    • Experienced solicitor
    • Contemporaneous note confirming capacity
    • Will read and explained
    • Will not incapable or irrational
  • Re Ashkettle [2013] EWHC 2125 (Ch)
    • No sound basis for solicitor’s view on capacity
    • Terms of will surprising

BEREAVEMENT/LACK OF WILLPOWER

  • Key v Key [2010] 1 WLR 2020
    • Bereavement
    • Severe affective disorder
  • Re Dharamsi [2013] EWHC 3917 (Ch)
    • Bereavement not necessarily disorder of mind
    • Testator acted of own volition
  • Parker v Litchfield [2014] EWHC 1799 (Ch)
    • Physical problems
    • Mental energy to make decisions

KNOWLEDGE AND APPROVAL

  • Gill v Woodall [2011] Ch 380
    • Grave and strong presumption
    • Knowledge and approval
    • Solicitor reads will
  • Testatrix suffered from agoraphobia
    • Exceptional case
  • Will not read in manageable chunks

PRECAUTIONS/IGNORANCE OF EFFECT

  • Solicitor: need to take proper precautions
  • Hawes v Burgess [2013] EWCA Civ 74
    • Beneficiary present
    • Draft not sent for prior approval
    • Golden rule not observed
  • Brennan v Prior [2013] EWHC 2867 Ch
    • Ignorance of legal effect
    • Knowledge of contents
    • What giving and to whom

EVALUATION OF ALL EVIDENCE

  • McCabe v McCabe [2015] EWHC 1591 (Ch)
    • Absence of reading over not fatal
    • Active instructions as to content
  • Re Butcher [2015] EWHC 1240 (Ch)
    • Estate left to builder
    • Exclusion of beneficiaries under prior will
    • Easy will to understand

UNDUE INFLUENCE

  • Hubbard v Scott [2012] WTLR 29
    • Estate to cleaner
    • Fascination of younger woman
    • Not coercion
  • Schomberg v Taylor [2013] EWHC 2269 (Ch)
    • Cogent evidence
    • Persistent unwanted pressure
  • Schrader v Schrader [2013] EWHC 466 (Ch)
    • Inferred undue influence
    • No good reason for change in will

FORGERY/DUE EXECUTION

  • McCabe v McCabe [2015] EWHC 1591 (Ch)
    • Strong presumption of due execution
  • Bhangal v Kaur, Lawtel, 15 Feb. 2014
    • Handwriting evidence inconclusive
    • Attesting witnesses not called
    • Finding of forgery

INHERITANCE ACT CLAIMS: ADULT CHILDREN

  • Ilott v Mitson
    • Estranged adult child of deceased
    • Unreasonable to exclude?
    • Value judgment
  • Quantum
    • Limited by expectation of benefit?
    • Relevance of state benefits: [2015] EWCA Civ 797
  • Re Waters [2014] EWHC 3614
    • Conduct defeated claim
    • Adult estranged daughter

SPOUSES

  • Dellal v Dellal [2015] W.T.L.R. 1137
    • Claim by widow
    • Dispositions intended to defeat applications for financial provision
    • Application to strike out/summary judgment failed
  • Chekov v Fryer [2015] EWHC 1642 (Ch)
    • Claim by former spouse
    • S. 15 order that no claims against other’s estate
    • Claim as cohabitant

REMOVAL OF PRS/TRUSTEES

  • Wilby v Rigby [2015] EWHC 2394 (Ch)
    • Removal of both executors
    • Could not work together
    • Independent solicitor appointed if no agreement
  • Re Weetman [2015] EWHC 1166 (Ch)
    • Removal of trustees
    • Conflict of interest
    • Ownership of shares in company
    • Trustee a director
    • Appointment of family members as new trustees

MARLEY V RAWLINS

  • Marley v Rawlins [2015] AC 129
    • Rectification of mirror wills
    • Signed by wrong spouse
    • Clerical error
    • Even if will formally invalid
  • Marley v Rawlins (Costs) [2015] AC 157
    • Insurer of solicitor
    • Liable to pay costs of both parties

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