Common Errors in Probate Disputes

Disputes concerning the validity of Wills are increasingly common. Probate litigation has its own particular procedures and principles and a failure to understand the relevant rules may lead to costly errors.

Caveat

The first indication that a probate dispute has arisen may be the discovery that a caveat has been lodged which is preventing a grant of representation from being obtained. A caveat can properly be lodged where

(i)        the caveator is concerned to prevent what they consider to be an invalid Will being proved ,or,

(ii)       the caveator accepts that a Will is valid or that the deceased died intestate but they consider that the person entitled to a grant is unsuitable to act.

It is never appropriate to lodge a caveat in connection with a family provision claim under the Inheritance (Provision for Family and Dependants) Act 1975. If a claimant wishes to know whether a grant has been obtained, he should lodge a standing search.

A caveat may be warned off. If the caveator does not have an interest contrary to the person warning because they accept the Will is valid, but they wish to show cause against the sealing of a grant to that particular person, the caveator should issue a summons for directions.  

On the other hand, if the caveator does not accept that the Will in issue is valid, he can enter an appearance. If they do so, then, unless a district judge orders otherwise or an application for discontinuance is made by consent, any caveat to which an appearance has been entered will remain in force until the commencement of a probate action. In effect the position is frozen.

It should be remembered that, even if the caveator does not lodge an appearance, this will not prevent them from challenging the validity of the Will afterwards. They will just seek revocation of the grant in any proceedings.

A common scenario is where the appearance is lodged but the caveator appears to have no intention of issuing proceedings and simply wishes to cause delay. In that case, the best course is to make application to the Principal Registry for a “put up and shut up order” ie that the caveator do issue proceedings within a short period of time or the caveat will cease to have effect.

Larke v Nugus request

It is the professional duty of the draftsman to answer such a request. A failure to do so may lead to an application being issued against them under section 122 of the Senior Courts Act 1981.

The Larke v Nugus response needs to be detailed and prepared with care. Otherwise great damage may be caused to the case of those defending the validity of the Will. It is also in the interests of the draftsman to use care in preparing the response because, if the Will is later found to be invalid, a claim in damages may be raised against them.

The golden rule

Although the Law Society Protocol and the latest STEP guidance place weight on the need for the Will draftsman to consider obtaining medical evidence as to the testator’s capacity, whether the golden but tactless rule has been complied with is generally of little importance once a dispute reaches Court. It is a mistake to place too much reliance on the rule in probate litigation.

The golden but tactless rule was set out by Lord Templeman in Re Simpson [1997] SJ 121 224. He indicated that, in the case of an aged testator or a testator who has suffered a serious illness, the Will ought to be witnessed or approved by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and who records and preserves his examination and findings. The solicitor and medical advisers should also obtain and consider the earlier Will of the testator and, if appropriate, discuss it with them. The instructions for the Will should be taken in the absence of anyone who stands to benefit under the new Will.

It is clear from case law that the rule is not a substitute for the established tests of capacity. Properly understood it is a suggested approach designed to avoid negligence claims against the draftsman. The most recent case law indicates that the Courts are not greatly interested in whether it has been met. In Elliott v Simmonds [2016] WTLR 1356 not only did the solicitor who acted not comply with the rule but he was unable to say in his evidence what it was. In Burns v Burns [2016] EWCA Civ 37 the Court of Appeal confirmed that the rule is not a touchstone of validity. The solicitor who acted was very experienced and he had read the Will over to the testator.

Probate actions

Probate proceedings must be issued using Form N2. The practical consequence of that is that a probate claim cannot be combined with any other form of claim such as a family provision claim. The requirement to lodge a statement of testamentary scripts should not be overlooked. This will allow the parties to understand how many Wills are in issue and in particular it will allow the claimant to understand how many Wills they must challenge to win their case.

A common error in probate actions is to fail to take a realistic view as to the allegations to be raised about the validity of the Will. The following points should be noted

(i)        undue influence should not be raised unless there is proper evidence that it was exercised. There is no presumption of undue influence. The claimant can expect to be penalised in costs if they allege undue influence and lose.

(ii)        an allegation of want of knowledge and approval of the contents of the Will may be a less risky and more realistic course of action than alleging undue influence.

(iii)      despite a few recent cases where the plea has succeeded, challenging the validity of a Will for want of execution remains very difficult due to the presumption of due execution.

In many cases, clients are wrongly led to believe that they can win their case based on expert evidence alone. Perhaps unsurprisingly many claimants were estranged from or had very limited contact with the testator at the relevant time and they cannot give evidence from their own knowledge about the testator.

Expert evidence generally has a relatively limited role to play in contentious probate litigation. In relation to forgery, in Supple v Pender [2007] EWHC 829 the Court explained that the correct approach was to consider the evidence of the attesting witnesses independently of the expert handwriting evidence. The Judge said that of itself the expert evidence would not have persuaded him that there had been a forgery if he had believed those witnesses. He would use the expert evidence for the limited purpose of fortifying the conclusion he had already reached that there had been a forgery as he rejected the evidence of the attesting witnesses.

In relation to an allegation of lack of capacity, the Court of Appeal has clarified the significance of expert evidence about capacity. In Hawes v Burgess [2013] EWCA Civ 94 they stated that the Court should not readily upset a Will on the ground of incapacity where it had been drafted by an experienced independent solicitor. It should only be set aside on the clearest evidence. Such evidence was unlikely to be outweighed by medical evidence. The Court should be cautious in acting on the basis of evidence of an expert who had never treated or even met the testator particularly where such an expert accepted that the testator had understood that they were making a Will.

In practice the most important witnesses are the solicitor who prepared the Will in issue and lay witnesses who knew the testator well. The solicitor’s evidence is crucial as they are likely to be the only witness who was actually considering the issue of capacity at the relevant time. Even if a doctor was involved in the Will making process, their assessment could have taken place weeks before the Will instructions were taken.

Where there has been a long delay between the taking of instructions and the execution of the Will, the rule in Parker v Felgate [1883] 8 PD 171 should not be overlooked.

Relevant evidence about capacity is highly time specific, particularly in relation to fluctuating conditions such as dementia. Judges are well aware that the elderly may suffer a rapid loss of capacity and so evidence of incapacity after the Will was made may be of little weight.

The solicitor’s evidence may have less weight in a case where the allegation is that the testator could not make a valid Will due to the presence of insane delusions which poisoned their affections. In such a case, a solicitor is unlikely to have been able to ascertain whether the testator was suffering from some form of personality disorder which would not affect their lucidity.  In such a case, expert evidence is likely to be more important. On the other hand, where it is alleged that the testator suffered from condition causing cognitive decline such as dementia, the solicitor’s view that the testator understood the elements of the Banks v Goodfellow test will weigh with the Court.

A common error is to fail to consider whether the testator had a good reason to change their testamentary intentions. If they did have a rational reason, establishing lack of capacity or want of knowledge and approval will be difficult.

Costs

It is still said often said, even now, that the costs of probate actions will be ordered to be paid from the testator’s estate. This is wrong. The strong rule in probate actions is that costs follow the event. There are limited exceptions to this rule being

(i)         where notice to cross examine the attesting witnesses has been given. This procedure is of very limited practical use

(ii)        where the dispute has been caused by the testator. This is wider than the missing Will cases but it is still limited in scope. In Breslin v Bromley [2015] EWHC 3760 it was held that the testator did not cause the validity dispute by making misleading statements.

(iii)       where a beneficiary has caused the dispute. This is largely concerned with failure to provide information prior to the issue of proceedings. The tactical withholding of information and documents can never now be justified in relation to probate disputes (see.Watton v Crawford [2016] NICh 14 C).

(iv)       where there were reasonable grounds to dispute the Will. This is far narrower than it appears and, where the exception applies, it only leads to no Order as to costs being made.

This article first appeared in the Law Society Private Client Section magazine.

                                                                                                          SARAH HARRISON

                                                                                                           ST PHILIPS STONE

                                                                                                           41 PARK SQUARE

                                                                                                           LEEDS