25 October 2013 by

A very valuable lesson learned

In 1990, Mrs S instructed her usual Solicitor to draft a will providing for her estate, which included her house, to be left equally to her sons, Bill and Nick. In 2005, Mrs S suffered a fall which caused her to become frailer and more dependent upon Nick, who lived with her. In 2006, Mrs S made a new will with a new firm of Solicitors leaving small legacies to her grandchildren and the house to Nick. The residue was to be divided between Bill and Nick.

When Mrs S died in 2008, Bill sought to prove the1990 will as he was unaware of the execution of the 2006 will. Nick later produced the 2006 will and Bill sought to overturn it, citing the following grounds:

– Lack of capacity;
– Want of knowledge and approval; and
– Undue influence.

Nick claimed ignorance regarding the terms of the 2006 will – especially in relation to his mother leaving him the house.

However, there was evidence to contradict this. The writer of the 2006 will gave evidence that she assessed that Mrs S had capacity to make the will and Mrs S had confirmed to her that she was not under any pressure or undue influence. A draft copy of the will was sent to Mrs S to check and it was returned to the writer with amendments – the amendments were in Nick’s handwriting.

The Court dismissed the first two grounds. However, in a surprise twist, the Court ruled that the will was invalid because of undue influence. The Court considered the following points:

  1. There is no presumption of undue influence in the disposal of assets in a will;
  2. One has to look at the facts of the case to see whether the execution of the will was brought about by undue influence;
  3. The burden of proof that there has been undue influence falls upon the person alleging it;
  4. Undue influence is more than mere persuasion; it is pressure that subdues the testator’s decision even though it does not impede the testator’s judgement;
  5. One must look to the testator’s physical and mental strength at the time of the execution of the will; and
  6. Did the testator make the will freely and of their own accord?

The most important factor which convinced the Judge that there was undue influence was that Nick was an extremely powerful personality who took advantage of his mother’s vulnerability by “sowing the seeds in his mother’s mind” that he alone should inherit the house.

Lessons should be learned from this case. Testators who want to divide their estate unequally should ensure that they involve all affected family members in the decision, leave written reasons for the decision and that any child who stands to gain more than others should play no part in the making of the Will. Otherwise there will be a risk of the will appearing to be made under undue influence and also may result in expensive and lengthy litigation.

 

8 October 2013 by

The Copyright Notice Service

Individuals and businesses often use or create copyrighted material on a daily basis, but it’s not always clear what can and can’t be done without breaching copyright laws.

17 October 2013 by

Estate Agents Update: End of the Property Misdescriptions Act 1991

On 1 October 2013, the Property Misdescriptions Act 1991 (PMA), which previously made it a criminal offence for estate agents to make false or misleading statements about properties being offered for sale, was repealed.

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