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CTTC Ltd has joined forces with Inheritance Resolution Dispute specialist Martin Holdsworth, solicitor and founder of IDR Law, who will be outlining the problems involved with and the solutions to Inheritance Disputes.

The question WHY? is at the start of most Will disputes. For some, the only explanation is that there must have been some kind of skulduggery. An assertion that the voice of the testamentary monologue is not that of the client and in consequence, the Will should be declared invalid.

Probate Claims

These are “PROBATE CLAIMS” – claims that the Will is invalid because it cannot be relied on as being the client's true wishes. Probate claims include allegations of a failure to execute the Will correctly, a lack of testamentary capacity, undue influence/coercion has been applied, revocation, lack of knowledge and approval, fraud and forgery … the list goes on.

The 1975 Act

Even where it is accepted that the Will may reflect those of the client, the second type of claim that can arise is where it is then asserted that the provisions of the Will can’t possibly be allowed to stand as they simply fail to make reasonable financial provision for disappointed beneficiary. These are claims under the Inheritance (Provision for Family and Dependents) Act 1975 (THE “1975 ACT”).

There is then a third main category of claim, that is neither a probate claim (it does not attack the validity of the Will) nor a claim under the 1975 Act – it is a claim that seeks to slice away part of the estate that legally appears in the name of the deceased and thereby never passes under the Will to the beneficiaries – these include equitable (“FAIR PLAY”) claims such as promissory estoppel and equitable accounting. One common example is where a parent promises to provide for their child and the child then relies on that promise to their detriment, the promise is broken on death by that parent who fails to deliver on that promise.

All three types of claim involve an analysis of Why? And so, it will come as no surprise that in virtually every case that we are instructed on, we are asked that very question. As I have said many times during my lectures over the years – my best witness to answer that question is unfortunately always dead! If your best witness is dead, then you need to hear their voice somewhere else – from other friends and family certainly, but the one place where what they have said is recorded contemporaneously and independently is in the notes and records of the Will drafter – the Will file. If that evidence is not recorded in the file notes, then you are reliant upon the memory of the Will drafter who took instructions and dealt with the Will execution.

Virtually without exception, on every case where there is a claim to bring or defend, contentious probate lawyers seek out the Will file notes. If those notes are not detailed or complete we turn to the Will drafter for a statement. In fact, the Will drafter is going to get a grilling over what they recall and have noted in their file – in search of the Why?

The claim being made could be one suggesting that the Will was not executed properly, or that the "Golden but Tactless rule" had not been considered, or that other parties were present and exerting undue influence or coercion? Does the file explain the reasoning behind the unequal gifting or why the carer now gets everything? Did everyone involved understand the extent of the client’s wealth and their obligations to others? Who made the appointments? Did you meet the client?

These are the questions which will require answering and these requests for information from you, the instruction taker are known as Larke v Nugus.

This is your last opportunity to watch our Webinar to ensure that you are Larke v Nugus ready. 

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