Contending probate

Mr Butcher, 73, was found dead in his home by police on 5 May 2013, leaving an estate worth in the region of £472,295. Sadly, it is suspected that he died nearly two months before his body was discovered by police.

Mr Butcher was a bachelor and lived alone after his sister Yvonne, who died in 2002. She used to share her home with him.

His only surviving relative was a cousin, Joyce, who was last in touch with him in around December 2012.

The claimant, Mr Sharp, is a builder and met Mr Butcher around 2007. Mr Sharp carried out maintenance jobs for Mr Butcher without charge. They both enjoyed chatting and sharing stories, sometimes discussing Mr Sharp's son who boxed for England.

The defendant, Evelyn, was Yvonne's school-friend's daughter. The families were very close; Evelyn was Yvonne's god daughter.

Mr Sharp applied for the court to pronounce in favour of Mr Butcher's 'homemade' will dated 5 January 2013, under which he was the only executor and beneficiary of the estate.

Evelyn challenged the 2013 will on grounds of want of knowledge and approval, and alleged that the signature was a forgery; the forgery allegation was dropped on the first day of trial on a review of evidence from a handwriting expert.

Evelyn asked the court to pronounce in favour of Mr Butcher's previous will dated 4 December 2011, under which she was the executor and one of three beneficiaries, the others being her brother and Joyce.

Ms Lesley Anderson QC adopted the 'single stage test' of whether Mr Sharp had discharged the burden of proving that the testator knew and approved of the contents of the 2013 will. The judge then used the 'two-stage test' to cross check:

(i) whether there were sufficient facts 'to excite the suspicion of the court'; and

(ii) whether or not those suspicions were allayed by the propounder of the will.

The judge said Evelyn had done enough to 'excite the suspicion of the court', but that the degree of suspicion was relatively low and Mr Sharp had done enough to allay those suspicions.

Mr Butcher was educated and of full capacity. The will he wrote was short and easy to understand. There were evidential gaps around the will's preparation, however the judge did not infer that to support the challenge. The court upheld the 'homemade' will and Mr Sharp won.

What to do if a client says their relative has died and an unexpected person has received everything?

They should seek the advice of a contentious probate solicitor as soon as possible. There are other ways to challenge a will and each ground has its own tests and case law.

Some key points to consider:

1. What happens if the will is pronounced invalid? What previous will stands in its place and if there is no previous will, what will happen under the intestacy rules? It is important to think about whether there is any benefit to the relative in embarking on a challenge.

2. If there is a benefit and they want to go ahead, they will need to act quickly and preferably before a grant is obtained and assets dissipated. As a first step, they should consider whether to enter a caveat.

3. They should also carry out a detailed investigation, e.g. get the will file if there is one, request the medical records, speak to witnesses, and draft a chronology.

4. Stand back and apply the test for the ground of challenge. Are all allegations supported with evidence? Did the testator have a genuine reason to change their Will?

5. Is mediation appropriate?

It can be difficult for a relative to accept the reasons why they have been cut out of a will, but probate litigation should not be embarked upon lightly. The costs can be considerable, reaching tens and even hundreds of thousands of pounds in complex, high value cases. Litigation will cause significant delay to the administration.

There is a great deal of stress involved and the risk of losing litigation and being ordered to pay the other parties' costs as well as your own is a very real one.

See Sharp v Hutchins; Re Estate of Ronald Hubert Butcher (Deceased) [2015] EWHC 1240 (Ch), [2015] All ER (D) 46 (May)

Marie Therese is a solicitor specialising in contentious probate disputes at Law firm Thomson Snell & Passmore

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