Care and attention

The current High Court case involving the estate of Sir Malcolm Arnold, one of Britain's foremost composers of the 20th century, has once again shone the media spotlight on the world of probate litigation; an area which in recent times has gained an increasing amount of press attention. While probate litigation may not be the first thing that springs to mind when one thinks of headline-grabbing courtroom battles, it often concerns feuding families, and when the cases also involve large sums of money and famous names press attention is never far behind.

For private client practitioners the cases are a stark reminder of how important it is to ensure that they have followed the correct procedures when taking instructions from clients who wish to make a will, or who are seeking advice on making a substantial lifetime gift, particularly when that client is gravely ill or on their death bed. As recent case law demonstrates, the actions of the acting solicitor, and their recollection of events, will form the key evidence in contested probate claims.

Consequently, their actions and conduct often come under heavy scrutiny by the courts.

Before considering the recent case law a distinction must first be drawn between contested probate claims and a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

A variety of claims will fall under the 'contested probate' heading. These include claims that a will is invalid, which can be based on a number of grounds, such as the testator's alleged incapacity at the time of signing the will, alleged forgery of a will or alleged undue influence that has been brought to bear on the testator. Actions to set aside lifetime gifts, for example on the grounds of undue influence or lack of capacity, are also generally considered under this heading, although strictly they are claims for equitable relief.

By contrast, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 will be brought by a family member or dependant against the estate of the deceased in circumstances where no provision, or inadequate provision, has been made for them under the terms of the deceased's will, or under the intestacy provisions that come into effect where the deceased failed to leave a will.

Lack of evidence

In the widely reported case of Gill v RSPCA [2010] EWCA Civ 1430, Mr and Mr Gill made mirror wills leaving everything to each other in the first instance, and then, upon the second death, everything was to pass to the RSPCA. The will also contained a declaration stating that no provision had been made for their daughter, Dr Gill, as she had been provided for during her lifetime.

Mr Gill died in 1999 and Mrs Gill in 2006. Upon learning that she would receive nothing from the estate Dr Gill brought a claim that her mother's will should be set aside on two grounds '“ first that her mother did not know and approve of the contents of her will, and second that her mother had been unduly influenced by her father to execute a will cutting out Dr Gill.

In evidence the court heard that Mrs Gill was agoraphobic and heavily dependant on her domineering husband. At first instance the court found that, while Mrs Gill did know and approve of the contents of her will, the will was invalid as Mr Gill had exerted undue influence to persuade her to leave everything to the RSPCA.

The Court of Appeal agreed that the will was invalid, although on the basis that Mrs Gill did not know and approve of the contents of her will.

In finding that Mrs Gill did know and approve of her will, the judge at first instance had inferred that both Mr and Mrs Gill had been present at the first solicitor's meeting where instructions were given; that, having been sent the draft wills, Mrs Gill would have read the draft will before attending the solicitor's office to sign the will; and that upon the day of the will signing the solicitor had read out each clause in turn to Mrs Gill.

However, the Court of Appeal found that there was a lack of evidence to support these inferences. Crucially, the solicitor who had prepared the wills had little recollection of events and his file had been destroyed, meaning that he had no contemporaneous attendance notes upon which to rely when giving evidence. If the solicitor had retained his file might the outcome of the case have been different?

Death bed instructions

In the case of Wharton v Bancroft & Ors [2011] EWHC 3250 Mr Wharton, who was suffering from terminal cancer, made a will on 23 September 2008 in contemplation of his marriage to his long-term partner, Maureen. The will left his entire estate to Maureen. Immediately afterwards he married Maureen in a ceremony conducted at their home. Mr Wharton died on 26 September 2008, leaving a £4m estate.

Mr Wharton's daughters challenged the will on the grounds of undue influence. In delivering the leading judgment Mr Justice Norris dissected in detail the actions of the solicitor involved in drawing up the will.

The solicitor was criticised by the claimants for failing to follow the 'golden rule', formulated by Templeman J in Re Simpson [1977] 127 NLJ 487, namely that in cases involving an elderly testator or a testator who has suffered a serious illness, the signing of the will ought to be witnessed by a medical practitioner who has satisfied himself of the capacity of the testator.

Mr Justice Norris, in dismissing the claim and pronouncing the validity of the will, stated that he considered the criticism of the solicitor for a failure to follow the 'golden rule' to be misplaced, and of the solicitor's evidence he said: 'I have reached the conclusion that Mr Bancroft's account of the central events is reliable. I place particular reliance upon the contemporaneous and the near contemporaneous attendance notes.'

It is clear that the solicitor's evidence and recollection of events was key to the judge finding in favour of the will. For most practitioners, many of whom will have taken death bed instructions in very similar circumstances to this case, the notion that their actions could be scrutinised by a High Court judge in a widely publicised case, which could make or break their reputation, is a sobering thought.

It is also worth mentioning the recent unreported case involving Leonard Taylor, who had lived with his partner Doris Luker for 15 years before her death. A week before her death Mrs Luker had given Mr Taylor a cheque for £61,000. Mr Taylor treated this as a gift but the executors challenged this, claiming that the gift was invalid as Mr Taylor had exerted undue influence over Mrs Luker. Further, as Mr Taylor and Mrs Luker were unmarried the legal presumption was that the money had been given to Mr Taylor to hold upon trust. Mr Taylor was unable to produce sufficient evidence to rebut that presumption and so Lord Justice Etherton concluded that on the balance of probabilities Mrs Luker did not intend it as an outright gift. Consequently, Mr Taylor was ordered to repay the £61,000 and fund the substantial legal costs of the parties involved.

Where do these cases leave practitioners? Certainly the cases reinforce the fact that practitioners must always take great care to follow the correct procedures when taking a client's instructions to prepare a will or advise upon a lifetime gift. They are also a reminder of the need to prepare and retain a clear and detailed record of all discussions with the client.

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