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What's Been Happening in Wills and Probate in September 2013?

View profile for Paul Hajek
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conveyancing wills and probate update

What’s been happening in Wills and Probate is an update of recent decisions in the Courts over the last few months.

We will break down the facts of the case, the decision of the Court or outcome and any trends we notice if you found yourself faced with similar circumstances.

This month we have four cases to discuss. Two cases relating to circumstances where Wills may or may not be overturned, one, an attempt to include gifts made during a lifetime as debts due to an Estate circumvent and the last case involves what you can give away in contemplation of your death but without making a formal Will.

The four cases are described in précis below. You will need to click on the case to see the fuller account.

The Grieving

The Courts are treating Wills made by those whom they decide are vulnerable or who have been grieving with extreme caution.

Where an 80 year old woman gifted her house worth £500, 000 to a couple who were close friends rather than her family, the Court decided that she was suffering from an affective disorder brought about by her grief at the deaths of her brother and her husband combined with a fragile mental state arising from her advanced age.

The Court decided that as the woman did not have the mental capacity to make her Will then she did not know or approve of the contents of the Will either.

The practical result meant that the woman died Intestate and her Estate went to her next of kin

The Vulnerable

A Will of a 98 year old woman was challenged on grounds of mental capacity and undue influence.

An earlier Will had given the bulk of her Estate to her two sons. A later Will gave her main asset , her house, to one son and then the residue of the Estate to the sons equally.

The other son challenged the Will.

The Court decided that there was no lack of mental capacity because their mother was unaware of the value of the house. The Court, however, did decide there had been undue influence. The Court’s reason was that the son had a forceful personality and the later Will had been prepared by a Will Writer introduced by the son who had been unknown to the family. The Will was also kept secret from the other members of the family.

Lifetime Gifts Do Not Form Part of an Estate

Two daughters of the deceased had £100,000 gifts made to them from the sale of their father’s home in consideration the support given to him in recent years. The home sold for £350,000 and was the main asset of the estate. The other son claimed unsuccessfully ( or sent packing I would suggest) that the gifts should be considered debts due to the Estate and be reclaimed.

What Gifts Can You Give Away Just Before You Die?

The law has allowed for a dying person to give away assets just before death without actually making a Will in certain circumstances.

The adopted daughter of an elderly gentleman was given the keys to house and title deeds as well as medals and photographs.

He later died without making a Will and she claimed the gifts were made in contemplation of his death. The Court agreed with her despite a claim from a brother who turned up courtesy of a genealogist.

What Does This Mean for You When Making a Will?

  1. In the last case, making a Will should always be recommended to avoid the problem which the adopted daughter had to endure. Don’t leave it to chance and run the risk of discomfort and worry for your loved ones in case there is ever a dispute.
  2. Avoid Will Writers. A Solicitor will have a much more rounded view of the potential pitfalls and not just act as he is told where circumstances may cry out for further investigation. A Will and Probate Solicitor is very much a Trusted Adviser for you and your whole family rather than someone out to make a quick buck out of vulnerable people.
  3. Contested Wills are becoming more common as the assets involved run to many thousands of pounds. Make a Will with your trusted adviser, your local and family solicitor. 

 

Paul Hajek

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