Posted on 13.6.12 by Michael Smoult
“Contentious Probate” is a fast and up and coming area of law, which is seeing a vast increase in disputes and litigation where people have died, and loved ones have not received what they believed to be rightfully theirs following the finalising of the deceased’s Will.
Cases are being reported on a regular basis as the total estate of the deceased, and the inheritance received by the beneficiaries, becomes more substantial, due largely to the increase in property value. It is becoming more and more common that scenarios occur where relatives or trusted individuals are seen to act ‘immorally’ to gain a part of someone’s inheritance to which they are not actually entitled.
The most recent case refers to two Wills that were prepared by a Hampshire Solicitor for his elderly aunts making him a ‘beneficiary’ of the estates, ie a recipient of part of the estate left when the aunts eventually die. The two women, Hannah Harris and Rosette Emmanuel, lived in Southsea where the solicitor Michael Harris operated his practice.
Both sisters had signed earlier Wills dividing all their assets between their great niece and great nephew, both of whom lived overseas. In December 2005 Mr Harris visited both of his aunts and soon afterwards produced new Wills for them to sign. Unsurprisingly these new Wills left a third of their estates to him including him along with the great niece and great nephew as beneficiaries. Rosette who was 84 at the time unfortunately died soon afterwards in January 2006 and Hannah who was 91 died the following year. These situations may sound familiar to many families as unfortunately this is a more common practice that we are now experiencing.
The great niece and great nephew challenged the Wills as they believed the circumstances to be wrong following the aunts’ deaths. After a long and bitter dispute the High Court has now ruled that Harris did not obtain the aunts’ full knowledge and approval when adding himself into the Wills as a beneficiary to their estates following their deaths. Mr Justice Henderson stated that it was obvious both women were in hospital at the time and one had very poor eyesight. One of the aunts was taking strong drugs for her cancer and there was doubt about the other aunt’s mental capacity to understand what was going on properly, as she had the early stages of dementia.
It is clear that if there are concerns about a testator’s full knowledge (the person making the Will) and approval, that a medical opinion should be sought. Without this the Will that is being made will be invalid. In order for there to be a full valid Will the testator must have the full understanding, intention, knowledge and approval of the Will. Further, the Will must not be a forgery and must comply with Section 9 of the Wills Act 1937.
As a result of the challenge made by the great nephew and great niece, the Court overturned the 2006 Wills made by Mr Harris and reinstated the earlier Wills that left the estates only to the great niece and great nephew.
You might think that this is the end of the story and the great niece and great nephew “walked into the sunset” with their whole inheritance. Unfortunately, it is not. When you commence litigation proceedings through the Courts, you must always consider how you would get your money back from the individual you are pursuing. In this case the combined value of the two aunts’ estates was £400,000. Because the estates had already been distributed, and it became apparent that Mr Harris had also obtained a Power of Attorney when he had visited them in December 2005 (which legally allowed him to manage both aunts’ affairs), it was found that there was not as much as anticipated in the estates of both ladies, as they had been stripped of a good deal of money by Harris whilst he was allegedly managing things for the aunts. Unfortunately, at the time of judgment by the Court, Mr Harris had no assets whatsoever, and is now aged 70.
Clearly, although the later Wills were declared invalid, and the earlier ones reinstated, it is going to prove highly difficult to get any of the due inheritance back for the great niece and great nephew. Add into that the money that has been spent trying to recoup the inheritance spent, it would seem that the result of the litigation actually produced no winners.
At Gorvins we are seeing an increase in these types of cases, and can advise you from the outset of the matter and how it would be best to proceed given all the circumstances. Our Contentious Probate team are happy to answer any queries which may be highlighted by the above.