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03 January 2020

Testamentary freedom and all that

In contrast to the law in many countries, the law of England and Wales allows testamentary freedom as Lord Hughes stated in his judgment in the Supreme Court decision of Ilott v The Blue Cross and others:

‘Unlike some other systems, English law recognises the freedom of individuals to dispose of their assets by will after death in whatever manner they wish. There are default succession rules in the event of intestacy, but by definition those only come into play if the deceased left no will. Otherwise, the law knows of no rule of automatic succession or forced heirship.’

Whilst the above quotation shows that the principle is still alive and kicking, there has been much discussion in the Supreme Court about the concept of testamentary freedom. Recent years have produced an increasing number of challenges brought against wills, often by children who consider that they have been unfairly treated.

The rising number of probate disputes

Ilott v The Blue Cross and others

The case involved a daughter who had been estranged from her late mother and successfully challenged the mother’s will under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act’).

The 1975 Act allows certain groups of individuals to make a claim against an estate if they can show that the deceased did not make ‘reasonable provision’ for them in the will.

Barnaby v Johnson

The recent, but unsuccessful case, involved the estate of Maudlin Bascoe who reached the grand old age of 96. She had originally had four children, but a son had pre-deceased her and a daughter had died in 2017 following her death. The dispute was therefore effectively between Mrs Bascoe’s remaining children, a son and a daughter.

In April 2005 Mrs Bascoe made a will under which her daughter received a legacy of only £100. The remainder of the estate was left to her son. Importantly. The 2005 will was made through a solicitor who had, by then, acted for her for about 17 years. She appointed the solicitor and her son as executors of her estate and included an explanatory note in her will to explain why she was only making such small legacies for her daughters, saying that they had ’shown very little care and concern’ towards her and had been ‘both been rude, unpleasant and in some instances, physically violent and abusive’ towards her.

It is easy to understand why the surviving daughter, Patricia Johnson, sought to oppose the 2005 will. However, her opposition took a rather ‘kitchen sink’ approach and she tried to argue that:

  • Maudlin had lacked testamentary capacity when she made the 2005 will;
  • her brother, Bradford, had exercised undue influence over Maudlin;
  • Maudlin’s signature on the will had been a forgery; and
  • there had been a want of knowledge and approval by Maudlin of the terms of the 2005 will.

Deputy Master Linwood roundly rejected Patricia’s various arguments. He found that:

‘The 2005 will is rational and was read over… to Mrs Bascoe who had testamentary capacity at the time. It was properly executed… the strong presumptions in favour of validity are present… Mrs Johnson has come nowhere near establishing the basis for any proper challenge; there is no documentary evidence which supports her and in particular nothing from independent parties especially in contemporary documentary form. Her evidence has been contradictory, self-serving and deliberately misleading. That of her witnesses did not assist her in any respect’.

Given the strong presumptions mentioned above, the burden shifted to Patricia to displace them. The judge found that the attack on capacity was wholly undermined by the medical records which were comprehensive in scope, detail and extent and showed an actual diagnosis of dementia in 2008. The judge similarly rejected the assertion that the signature was not Maudlin’s and he dismissed without reservation the allegation of forgery as he considered that there was no basis for it and it should never have been made (Patricia had produced no expert evidence to support her contention).

A successful allegation of undue influence requires evidence of actual undue influence. The test can be a high one to meet and Patricia failed in this regard. The judge considered that there was no basis for the claim of undue influence and he decided that Patricia’s account was wholly untrue. Again Patricia failed to discharge the burden on her and he found that the Claimants had proved Maudlin’s knowledge and approval of the 2005 will through the evidence of the solicitor and the attesting witnesses.

Rea v Rea

A not dissimilar challenge failed to a will left by Mrs Rea. She died in July 2016 leaving behind her four children. In 1986 she had made a will dividing her estate equally between her four children but in 2015 she made a radically different will leaving her house, which was the only real asset in the estate, to one of her children, Rita. Her will included the following clause:

‘I declare that my sons do not help with my care and there has been numerous calls from me but they are not engaging with any help or assistance. My sons have not taken care of me and my daughter Rita Rea has been my sole carer for many years. Hence should any of my sons challenge my estate I wish my executors to defend any such claim as they are not dependent on me and I do not wish for them to share in my estate save what I have stated in this will’.

It turns out that Mrs Rea was prescient as when Rita sought to obtain a grant of probate of the 2015 will the sons opposed this putting forward four different grounds:

  • that Rita lacked the necessary testamentary capacity;
  • she did not know and approve the contents of the 2015 will;
  • the will was procured by the exercise of undue influence exerted by Rita over Mrs Ray and;
  • the later will was procured by a fraudulent calumny practice by Rita on Mrs Rea.

The sons argued that probate ought to be granted of the 1986 will.

Like Deputy Master Linwood in Barnaby v Johnson, Deputy Master Arkusa rejected the sons’ claims and he attached considerable weight to the evidence of the solicitor who had prepared the will and Mrs Rea’s GP who had provided a contemporaneous capacity assessment prior to the signing of the will. The judge commented that:

‘On one level it is understandable that the defendants feel disappointed, upset and resentful that they have not benefitted from their mother’s will. In my judgment they have allowed these emotions to override a more considered reflection that Mrs Rea had reasons to benefit Rita for all the care that Rita had given her for over six years and more as her principal carer… It is not my task to decide whether the 2015 will was justified or fair. I am only required to decide if it is valid… I find it is valid, and that it should be admitted to probate’.

The significance of these cases

These decisions reveal how important it is that particular care is taken before launching into a challenge about the validity of a will where that will was prepared with the assistance of an experienced solicitor. A wholly dispassionate analysis is needed of the evidence contained in the will file and any available medical evidence. As Mrs Ilott found, claims under the 1975 Act which seek to assert that a will failed to make reasonable financial provision for the Applicant often afford greater opportunity for the court to interfere with a person’s will. Probate proceedings can be expensive and an unsuccessful Claimant can end up having to pay a large part of the costs incurred by the other parties. Where different types of claims are available it can often be sensible to concentrate on those which have the best chance of success.

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