Is Your Will Protected By The Golden Rule? Warn Contested Probate Solicitors22nd Aug 2013
A recent High Court judgment has reinforced the importance of applying the ‘golden rule’ in drawing up a will, warn Dorset probate solicitors Coles Miller.
For a will to be valid, the person making it must have sufficient mental capacity to understand the process and its consequences.
They must be able to understand how much their estate is worth, to whom they are bequeathing it and why.
Wills can be challenged in court. Coles Miller Solicitors are forecasting an increase in the number of these contested probate hearings.
In the High Court case of Ashkettle v Gwinnett (2013 EWHC 2125 Ch), it was held that the woman making the will had been “unable to communicate in any meaningful way” but “may have retained a sufficient social façade to mask her deterioration.”
The case highlights the importance of maintaining the ‘golden rule’, as outlined by Mr Justice (later Lord) Templeman in the Kenward v Adams case (1975 CLY 3591).
When someone making a will has been ill, the process should involve a medical professional to confirm that they are of sufficient mental capacity. Even so, the will could still be challenged in court.
Bournemouth litigation solicitor Simon Steele-Williams, a Partner at Coles Miller, said: “Disputing a will is becoming much more common now.
“People are more aware through the media of the fact that they can contest a will in court.
“The growth in contested wills has also been fuelled by rising property prices over the last 20 years. There are more assets to be fought over,” he added.
Various others factors have helped to exacerbate the growth in probate-related litigation:
- People are living longer and amassing more wealth during their lives. Some are having to use ever more complex ways of avoiding Inheritance Tax as they exceed the IHT threshold.
- Family dynamics are now more complex and stressful as more marriages break down, resulting in various dependants from different relationships contesting an estate.
- There may now be less of a stigma in suing relatives who may be connected only by former marriages rather than blood ties.
- No win, no fee claims are making the legal process quicker, easier and consequently more attractive.
Even valid wills can be challenged in court if a dependant claims that insufficient provision has been made for them in the administration of an estate.
These claims under the Inheritance Act must generally be made within six months of probate having been granted, although there are occasional exceptions.
Wills can be contested for a number of reasons:
- Mental capacity - the person making the will (the testator) was not in full possession of their faculties when drawing it up. This can be hard to prove and generally requires the evidence of a medical expert.
- Undue influence - the testator has been forced into signing a will.
- Invalid procedure - the correct legal protocols have not been carried out. Claims like this are on the rise.
- Fraud - rare but not unknown. Executors must remain vigilant at all times and report any suspicions to the solicitors.
Coles Miller has specialist wills and probate solicitors in Bournemouth, Poole and Dorset, along with specialist litigation lawyers.
For more details about contested probate, please contact Coles Miller Solicitors Partner Simon Steele-Williams, 01202 293226.
This document is not intended to constitute and should not be used as a substitute for legal advice on any specific matter. No liability for the accuracy of the content of this document, or the consequences of relying on it, is assumed by the author. If you seek further information, please contact Managing Partner Neil Andrews at Coles Miller Solicitors LLP.
