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Alison parry 800x800px
JMW
4 months ago
I am often instructed in matters where the validity of a Deceased person's will is challenged. One of the more common grounds for disputing the validity of a will, is that the person lacked the capacity at the time of preparing and executing their last will. I have recently co-authored a blog on the very recent case of Hughes v Pritchard where capacity was an issue. The court's decision was an usual one, the significance of which is discussed below. Hughes v Pritchard: How far do you need to go to establish capacity? 12th July 2021 If it is considered that a deceased person lacked testamentary capacity when making a will, and the validity of the will is therefore brought into question, then a person may bring a challenge to try and overturn the will. In an interesting and arguably unusual decision, judgment was handed down in the case of Hughes v Pritchard (2021 EWHC 1580 Ch) on 11 June 2021. Despite the solicitor who drafted the will following the ‘Golden Rule,’ and there being a GP and expert report concluding that the Deceased had capacity at the time they executed their Will, the Judge still ruled that the Deceased lacked capacity at the time. The Golden Rule When drafting a will for a client, it is always important for solicitors to ensure that their client has testamentary capacity, as set out in the test in the well-established case of Banks v Goodfellow, to ensure the will is valid. This is particularly important where the client is elderly, vulnerable or seriously ill, where the possibility of capacity issues are more likely to arise. The law provides further guidance in relation to this, with the ‘Golden Rule’ of will making, as provided for in the case of Re Simpson [1977] 121 SJ 224. This rule provides that in the case of an elderly or seriously ill person who wishes to make a new will, the solicitor should seek the opinion of a medical expert regarding the person’s capacity to make a new will. This was of importance in the case of Hughes v Pritchard. Background This case concerned the estate of Evan Richard Hughes (“the Deceased”) who died in March 2017, and the source of the dispute was his last will dated 7 July 2016 (“the 2016 Will.”) The Deceased had three children, Gareth, Cerys and Elfed. Elfed unfortunately predeceased his father, in tragic circumstances. In his previous will, (“the 2005 Will”) the Deceased left his shares in a family business to Gareth and Cerys and left all of his farm land to Elfed. Throughout his life, Elfed had always been told that he was being left the farm land, and in reliance of this promise, he worked very long hours on the farm, as well as working for the family company. For many years, the Deceased had made all of his children aware of what would happen with his estate upon his death. Shortly after the death of Elfed, the Deceased changed his will and created the 2016 Will. At this time, the Deceased was said to be suffering from moderate to severe dementia. The main change made in the 2016 Will was that his son Gareth would now inherit the majority of the farmland, with the residue being left to Elfed’s widow, Gwen. The solicitor dealing with the 2016 Will arranged for a capacity assessment to be carried out in relation to the Deceased, before the new will was to be executed. This was in accordance with the Golden Rule. The doctor providing the assessment was provided with a copy of the proposed 2016 Will and the existing 2005 Will. Following a meeting with the Deceased, the doctor confirmed that he had no concerns as to the capacity of the Deceased to change his will, and that he would be happy to act as a witness. Claim Following the Deceased’s death, Gareth, who had benefitted from the change, sought to propound the validity of the 2016 Will. However, the Defendants (the Deceased’s daughter and Elfed’s widow and son,) brought a counter-claim, arguing that the 2016 Will was not valid as the Deceased lacked testamentary capacity at the time it was made, by reason of his dementia. Decision Despite there being both a GP report and expert report confirming that the Deceased was considered to have testamentary capacity when making the 2016 Will, the Judge held that the deceased in fact lacked testamentary capacity when making the 2016 Will, and therefore the previous 2005 Will was to be taken as his last Will. Further, despite the solicitor who drafted the 2016 Will having followed the Golden rule, as well as there being a GP report and expert report, the Judge held that applying the Banks v Goodfellow test for testamentary capacity, the Deceased did not have the relevant capacity to appreciate the understanding that he had with his son Elfed over the years in connection with the farmland, and his subsequent reliance on this. The Judge also concluded that he lacked the capacity to be able to fully understand the extent of the farmland, and to further understand that the changes in the 2016 Will were more than just minor changes to the 2005 Will. In addition to this, the Judge also relied on the fact that in giving evidence, the GP subsequently placed doubt on the reliability of his own account when providing the capacity assessment, as he too had not been made aware of the extent of the changes which the 2016 Will would encompass when compared with the 2005 Will. He initially believed that the Deceased was only making small changes to the original 2005 Will and that distinction may have changed his view on capacity at the time. Significance This case serves as an important reminder in the case of validity challenges, that capacity reports remain persuasive evidence, but are not determinative. Even in the presence of seemingly convincing evidence from a GP and an expert that the Deceased had capacity, this was still not enough to prove capacity in this case. Just because you have a capacity report does not necessarily mean that there can be no successful challenge to the validity of the will. This arguably adds to the inherent uncertainty and costs risk associated with going to court in such cases. The case also highlights the importance of providing complete and comprehensive instructions to a healthcare professional when obtaining a capacity report. For example, there should be clear details provided as to the extent of the changes to any will, as this could impact their assessment of capacity as the extent to which changes are made could be significant. In this case, it wasn’t just a minor change to the will, but instead a major asset (ie the farmland) was being redirected and was worth almost £490,000. As a final point, on the facts of this case, even if the 2016 Will was held to be valid, there would still would have been a proprietary estoppel claim, which Elfed’s widow could bring on his behalf.
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Alison parry 800x800px
JMW
4 months ago
I often get asked what the difference is between mutual and mirror wills. My article below explains exactly what they are and the advantages and disadvantages of both. Mutual Wills and Mirror Wills 10th January 2020 Mirror wills and mutual wills offer a combined approach to the distribution of shared assets between those in a relationship. These wills can assist with the distribution of the estate in accordance with the wishes of both parties, but can also impose restrictions that can affect the future wishes of either party. Therefore it is important that any joint approach to drafting wills is careful considered to ensure that both parties fully understand their respective wills and how they will operate to provide for their loved ones. If this is not the case, it is more likely that disputes may arise. JMW have been involved in a number of cases where disputes arise after someone has died as a result of a failure to consider the correct approach at the time of will drafting. Mirror Wills Mirror wills, as the name suggests, largely reflect the terms of a spouse’s or partner’s will. They are usually drafted to distribute the estate to the surviving partner upon the death of the first partner, and make provision for any children by directing that the surviving partner passes assets on to the children upon their death. However, wills in these specific terms are becoming less common as families become more complex, with people making wills with their partner perhaps having children from previous relationships who they may wish to provide for in their will. In cases such as these it is not always practical to have wills with identical terms, as this may mean that parties are excluded. Similarly, if the makeup of assets belonging to the parties are complicated, or the assets belonging to each party are vastly dissimilar in value, then a mirror will in these terms may not be appropriate. Furthermore, with mirror wills in place, there is no guarantee that the surviving partner will not simply change their will after the death of their partner, in line with the principles of testamentary freedom. This can leave the surviving partner’s will subject to dispute and defeats the intention around the drafting of the mirror wills, namely that the first partner to die knows that their children will receive an inheritance on their partner’s death. Therefore, when creating mirror wills, a strong element of trust is required between the parties that their surviving partner will honour their wishes, and if this is not the case, disputes can arise. Mutual Wills In order to address these deficiencies regarding mirror wills, one alternative is to draft mutual wills. This is when two people prepare wills on the agreement that they will not be revoked by the survivor of them. This can provide reassurance to the parties as they will know that whoever passes away first, their wishes will be complied with. However, this can also bring complications for the surviving partner, for instance if the surviving partner remarries or has more children, or they dispose of assets during their lifetime which are given as legacies in a will. Due to this, despite the advantages they would appear to create in terms of certainty of distribution mutual wills are far less common. Potential solution? One solution to the issues identified above is to draft a mirror will with a life interest trust. This can safeguard the assets under the trust and ensure that they are distributed in line with your wishes to the intended beneficiaries. For example, if both partners share ownership of a property, one partner can leave a life interest trust to their child/children in which their portion of the property will go to their child/children subject to their partner having the right to live in the property for the rest of their life. This means that even if their partner went on to remarry and have more children, the trust would provide reassurance that the assets would be left to the beneficiaries that are intended under the trust. Therefore, it is very important to seek professional advice when considering drafting mutual wills or mirror wills, particularly where trusts may be involved. It is also important to seek professional advice if you are planning to contest a mirror will or a mutual will or if you are the beneficiary or Executor of this nature that is facing a challenge. Should you find yourself involved in a dispute, JMW Solicitors offers specialised, expert advice that is tailored to your circumstances. Please do not hesitate to contact the team to discuss how we can be of assistance.
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David Wylde
4 months ago
On unresolved EU applications.
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Alison parry 800x800px
JMW
4 months ago
Last week saw the release of Chambers and Partners High Net Worth Guide 2021. Chambers and Partners Private Wealth Disputes rankings table identifies the leading professional advisers to the Private Wealth market in North West. Their research into the top ranked firms provides all the relevant information required when looking to procure legal or other advisory services. Chambers Research is conducted by 200 Research Analysts, across 200 jurisdictions and provides nearly 6,000 rankings tables. Annually, they collect hundreds of thousands of responses from clients, the majority via in-depth interview. This year my team was ranked top tier in "Band 1" and the firm was described by one interviewee as being a "professional, modern firm delivering expert advice". On a personal level, I have been ranked as a "Band 2" individual with one interviewee saying "Alison Parry is one of the best litigators in Manchester" and "her strengths are her obvious expertise, her capability and her empathy". If you need expert legal advice and practical support in relation to disputes concerning wills, trusts and inheritances whether that be in your capacity as an executor, trustee, beneficiary, or someone who feels they’ve not been provided for either within a will or in a trust, we can help you. Alternatively, if your loved one did not leave a will and as a result you have been excluded from their estate, then it may be possible to claim on their estate. If you are looking for assistance in a dispute concerning someone’s estate, get in touch with my dedicated team today.
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Alec Hancock | Consultant CILEX Lawyer
5 months ago
Most appeals are drafted by Barristers (who usually had conduct of the hearing which is being appealed or will conduct the appeal), however in my holiday sickness case the trial Barrister didn’t think my clients had sufficient prospects of success. So I drafted the Appeal, which led to the Appeal Judge granted permission and my clients succeed at the appeal hearing, overturning their loss and turning it into a win. https://holidaysicknesslawyer.com/case-study/
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Alec Hancock | Consultant CILEX Lawyer
5 months ago
I took over a Holiday Sickness case where the previous law firm decided they could no longer proceed on a No Win, No Fee basis. The claim was weeks away from limitation but I agreed to take it on. I would have been able to provide Trial Advocacy in house without the client being responsible for a Barrister’s fee (and Barristers rarely offer No Win, No Fee agreements). The Defendant is now settling, something the Clients wouldn’t have been able to do if they didn’t come to me. The previous law firm would have just closed the file www.holidaysicknesslawyer.con
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AL-HQ Law
5 months ago
AL-HQ Law specialise in Islamic Wills to provide the Muslim community both nationally and internationally a Shar’iah compliant service from qualified legal experts and islamic law specialists.
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Alison parry 800x800px
JMW
5 months ago
My article below discusses Fraudulent Calumny, a further ground upon which a will can be challenged. Please continue reading for an analysis of what fraudulent calumny is and how you can prove it if you find yourself in such a situation. Fraudulent Calumny 9th April 2020 What is Fraudulent Calumny? Fraudulent calumny is a lesser known ground on which to challenge a Will. It is similar to undue influence in a number of ways, but in order to establish a case of undue influence, you must establish that the testator has been coerced to draft their Will in a certain way. Fraudulent calumny on the other hand has a more subtle effect. In a case where fraudulent calumny has occurred, the testator makes their Will of their own volition, but their perception of a potential beneficiary has been altered by another beneficiary and this has affected the way in which they have drafted their Will. Case law has established that fraudulent calumny occurs where person A poisons the testator’s mind against person B, who would otherwise be a natural beneficiary of the testator’s estate, by casting dishonest aspersions on person B’s character. Person A must know that the information they are giving the testator is untrue, or not care whether or not it was true, so that when the testator drafted their Will they did not do so in the knowledge of true facts. This is often explained as someone poisoning the mind of a testator about a particular person in order that the testator then freely excludes them from their Will. An Example - Christodoulides v Marcou [2017] Fraudulent calumny is better explained with reference to an example. In the above case it had always been the intention of the testator to leave her estate equally between her two daughters and to this end she decided that she did not want to draft a Will, but would allow her estate to pass in accordance with the Intestacy Rules, meaning that it would be split between her two daughters as she had no spouse. However, one of the daughters, Niki, attempted to poison the mind of her mother by telling her that her sister had stolen £500,000 from her mother, which resulted in her mother drafting and executing a Will shortly before she passed away, which left her entire estate to Niki. These statements were found to be untrue and Niki was found to have acted dishonestly and fraudulently in giving this false information to her mother in the knowledge and hope that it would cause her mother to alter her Will in her favour. On this basis, this Will was found to be invalid and the mother was deemed to have passed away intestate, resulting in her estate being split equally between the two daughters. How Can I Prove It? It is important to bear in mind that fraudulent calumny can be a difficult ground to prove as there is a high burden of proof. An important aspect of fraudulent calumny is that Person A must know that the information they are giving the testator is untrue or it must be shown they did not care whether the information given was true and this can be difficult for the other person to prove. Furthermore, there must be no other explanation as to why Person B has been excluded from the testator’s Will in order to establish the ground of fraudulent calumny, which again may be difficult to prove when the testator is no longer around to give evidence. If you have concerns that someone may have poisoned the mind of a loved one by feeding them false and misleading information about you with the aim of influencing them to exclude you from their Will, it is important to seek specialised legal advice and assistance. Challenges to the validity of a Will on the ground of fraudulent calumny can be complex and it is therefore important to seek specialised legal advice before deciding to proceed with a challenge to a Will on this basis.
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Alison parry 800x800px
JMW
5 months ago
A Will can be challenged in numerous ways; however, one of the more exciting areas is forgery. There has been increase in the number of cases coming before the courts and my colleague, Claire Brierley, examines a recent High Court decision concerning forgery. Her article is set out below: Wrangle v Brunt: helpful guidance on what evidence will be taken into consideration when determining an allegation of a forged Will 13th May 2021 In this case the master in the High Court Chancery Division was satisfied a Will had not been forged, but interestingly, the Appeal Court deemed the Judge in the first instance to have erred in their approach when arriving at this conclusion. This is a controversial ruling that provides guidance on what will be taken into account when determining a forgery claim, and the significance of expert evidence. Facts of the case Mr Brunt passed away in 2007 and his mother believed he died intestate and so obtained letters of administration and administered the deceased’s estate under the rules of intestacy. However, in 2017, ten years after the deceased passed away a Will purportedly belonging to the deceased was discovered in a consultant’s office. The Will was signed by the consultant purportedly at the direction of the Deceased. A named beneficiary in the Will then claimed the estate ought to be re-distributed in accordance with the Will, and not the rules of intestacy. Mr Brunt’s mother and brother disagreed, believing the Will to be a forgery created after he died, and raised concern regarding the consultant’s previous conviction for fraud. Days before the trial took place, an additional copy of the Will was discovered. Both signed by the same consultant, but both signatures appeared to look slightly different and so handwriting experts were requested to give evidence at trial. The consultant’s evidence in defending the claim involved; two signed Wills; two attendance notes detailing his appointments with the deceased; and one diary entry indicating when the Wills had been signed Unfortunately, the Consultant passed away prior to the trial taking place. The High Court’s decision This is a case that suffered directly as a result of the impact of the Covid-19 pandemic and the lockdown the UK faced back in March 2020. Therefore the length of the hearing was shortened from the recommended eight days to three days so only key witnesses were cross-examined and the handwriting expert testimony was thereafter withdrawn. The task for the High Court was to establish whether or not the Wills were in fact signed in 1999 without the testimony of handwriting experts. Master Teverson adopted Parsonage (Deceased), Re [2019] EWHC 2362 (Ch) in his approach to assessing the evidence and making of finding of fact. In Parsonage, reliable contemporaneous documentary evidence was taken as a platform for fact-finding, adding to that known, established or probable facts, and then building further with witness evidence which was consistent or compatible with that underlying body of reliable documentary evidence. Master Teverson took the disputed evidence provided by the Consultant first and used this as a platform to find if witness evidence was consistent with his findings. In his reserved judgment, he stated the deceased’s sister and uncle were impressive witnesses, that the mother was unimpressive, and that he had taken into account the Consultant’s bad character. By adopting the Parsonage approach, the master held the Will to be a valid legal document on the assessment of the evidence and facts. The significance of this decision suggested there ought to be a focus on contemporaneous evidence instead of a reliance on expert evidence. The claimants in this case subsequently sought to appeal this decision and an appeal was allowed. Court of Appeal judgment In an interesting Court of Appeal judgment, Michael Green J concluded Master Teverson had erred in his approach by applying Parsonage and using unreliable contemporaneous documents as the basis for his consideration. Going further, he added the master had failed to weigh the evidence against factors that indicated the Will was a forgery and had given insufficient weight to the expert handwriting evidence. As such, there should have been a balancing exercise considering the aforementioned. It was wrong to use the disputed evidence as a starting point and then to use witness evidence to find out if this was consistent. The attendance notes and diary entry were considered to be reliable contemporaneous documents however since they were challenged to be forgeries they were thus unreliable and should not have been used as a starting point. In reaching the decision, the High Court should have focused on the witnesses, their possible motives for lying (Armagas Ltd v Mundogas SA (The Ocean Frost) [1985]), and the extent to which the court had relied on their demeanour. The master was also unclear as to why he found the deceased’s sister and uncle impressive witnesses, yet not the mother. Additionally, he failed to clearly explain what he meant when he said he had taken the Consultant’s bad character into consideration. A serious flaw in his judgment was not accepting the expert evidence in this case. He rejected the evidence on the grounds that it did not fit with his findings of fact, despite the evidence strongly indicating the Will had not been signed in 1999. The handwriting experts were both satisfied the Wills had not been signed when the Consultant suggested, that they had been drafted on separate occasions, and that the diary entry had also been added at a later date. On the above grounds, the court had no option but to order a re-trial. Conclusion The Court of Appeal judgment helps to provide guidance on how a Judge should approach evidence in cases similar to this one in the future. The re-trial will take place before a High Court Judge on a date to be fixed by the court shortly and it is well-worth keeping a close eye on seeing how this one unfolds.​​​​​​
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Alison parry 800x800px
JMW
5 months ago
Contentious Probate is a specialised area of law which requires in depth, expert knowledge. In his article dated 4 March 202 (see below), Ian Johnston, discusses what exactly Contentious Probate is and why expert legal advice is required. The Importance of Seeking Expert Legal Advice 4th March 2020 Contentious Probate is an area of law that involves disputes concerning the estate of someone who has passed away. Disputes can arise for a number of reasons, including but not limited to: Disputes regarding the validity of a Will; Disputes over the value of assets within the Deceased’s estate; Disagreements between beneficiaries and executors of a Will; and Concerns regarding an executor’s conduct and whether they are acting in line with their duties. Contentious Probate is a specialist area of law that requires in depth, expert knowledge. Whilst there are many law firms that assist with drafting Wills and the administration of estates of individuals who have passed away, it is important to note that where a dispute arises over the estate of someone who has passed away, this constitutes a separate and distinct area of law which has its own rules and procedures. Therefore it would not be appropriate to instruct a Private Client solicitor or a commercial litigator to assist with your matter if they do not specialise in the area of Contentious Probate as they would be unfamiliar with the rules and procedures that are specific to this area of litigation. If you are seeking legal assistance with a contentious dispute over the estate of someone who has passed away, it is important to make sure that you are seeking specialised legal advice from professionals who are experienced in this area. As an example of what can happen when parties who are unfamiliar with Contentious Probate matters fail to seek specialist advice in recent news, a solicitor who was the head of a Private Client department was struck off for acting dishonestly in making misleading statements to beneficiaries. This occurred following a dispute between two executors concerning the estate assets, one of whom was a client of the solicitor in question. Despite the fact that this solicitor did not specialise in Contentious Probate, he did not refer the matter elsewhere and proceeded to act for his client in relation to this dispute without consulting specialists. Unfortunately, the solicitor ended up providing false information to the beneficiaries of the estate as to the progress of an application, describing himself as “out of his depth on this particular case”. Ultimately the solicitor’s conduct was referred to the Solicitors Disciplinary Tribunal and he was struck off the roll of solicitors. The above is an example of how a competent and well respected solicitor can struggle and find themselves in unfamiliar territory if they take on Contentious Probate matters where they do not have the specialist knowledge of these types of proceedings. Whilst the solicitor’s conduct in this matter was not malicious, it still resulted in him being struck off. If you are involved in a dispute regarding the estate of someone who has passed away, it is important that you instruct specialist legal assistance to ensure that you receive appropriate legal advice and assistance. At JMW, there is a Contentious Probate department which deals with disputes of this nature, please do not hesitate to contact us to discuss how we can be off assistance.
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David Wylde
5 months ago
Family is everything.
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David Wylde
5 months ago
For quality immigration advice in the right direction, you should speak with me first.
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David Wylde
5 months ago
Spouses of British or settled persons: minimum income requirement and article 8 ECHR Since the massive changes in Immigration Rules introduced on 09 July 2012, the lawfulness of several of the Rules’ requirements relating to spouses and partners’ visas have been challenged. In 2015 the Court of Appeal (Civil Division) analysed the lawfulness of the requirement that the sponsor of a foreign spouse should earn at least £18,600 in order to bring their partner to the UK in the case of SS (Congo) [2015] EWCA Civ 387. The Court also revisited the case of MM (Lebanon) V SSHD [2013] EWHC 1900 (Admin), which looked at the legality of the Leave to Enter section of the Rules. According to the Court of Appeal, in “near miss” cases, i.e. cases where the requirements of the Rules are almost met, the balancing exercise between public and individual interest might be a relevant consideration, which may tip the balance in favour of the applicant. However, this is not always the case. For example, future possible improvements in an applicant’s financial position should not require the Secretary of State to take into consideration that the requirements of the Rules will be met at some point in future. The cases were appealed to the Supreme Court and finally, on 22 February 2017 the long-awaited judgement of the Supreme Court has been published. The Supreme Court ruled that the minimum income requirement, set by the Home Office at £18,600 is lawful and proportionate. Therefore, it was concluded that the Immigration Rules are lawful in this respect. However, the Court found that the Rules failed to take into account that when children are involved, the best interest of the child should always be considered. Furthermore, the Court ruled that there should be more flexibility when considering alternative sources of funding available to the sponsor or applicant. The Supreme Court ruling means that British or settled persons are still required to meet the minimum income requirement of £18,600 in order to apply for leave to enter or remain for their foreign spouses or partners. However, in cases where the Immigration Rules cannot be met, the Home Office and Immigration Judges at appeal stage should consider alternative sources of funding and take a flexible approach, compatible with Article 8 of the European Convention of Human Rights. Whether the Home Office will implement changes to the Rules to reflect a more flexible approach remains to be seen. We may end up having to wait for Home Office decisions made after this newest Supreme Court ruling to see how cases are actually being decided in practice. If you would like advice on how these changes may affect you please do not hesitate to contact me through the Lawyer 365 platform.
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Alison parry 800x800px
JMW
5 months ago
Following the death of Wham star, George Michael, earlier this year, Kenny Goss (Michael's previous partner) sought to bring a claim against the £97 million estate for reasonable financial provision. In his article dated 20 May 2021 (see below), my colleague, Ian Johnston, explains what exactly this means and what the outcome was. "George Michael’s ex-partner wins a share of the star’s £97 million estate" 20th May 2021 Wham star, George Michael, famously known for hits including ‘Faith’ and ‘Last Christmas,’ passed away on Christmas day in 2016. Michael’s estate was estimated to be worth just short of £100 million, with the majority of his estate being left to his siblings and various friends. The will left nothing to Michael’s ex partners, including Kenny Goss. Michael’s former partner, Kenny Goss, sought to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, seeking reasonable financial provision from the estate. Goss and Michael had a serious relationship together between 1996 and 2009. Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”): The Act allows certain categories of people to claim financial provision from a deceased person’s estate, if they believe they have not been suitably provided for in their will, or under the intestacy rules where there is no will . S.1(1)(e) of the Act allows a person to make a claim if immediately before the death of the deceased, they were being maintained, either wholly or partly, by the deceased. It is understood that Goss sought to bring a claim under this part of the Act, seeking reasonable financial provision from Michael’s estate. To be successful with such a claim Goss would have had to convince a court that, despite no longer being with Michael, he was still being maintained by him until his death. Facts of the claim: It has been widely reported that, in making his claim, Goss had been seeking monthly payments of £15,000 and that even more importantly, he was still being maintained by Michael, up until his death. He further argued that he was reliant on the money from Michael and that he gave up his career as an art dealer to look after him. During their relationship, he is understood to have claimed that he was “effectively a stay at home husband.” Crucially, Goss claimed says he was also reliant upon the money from Michael after their relationship had ended, right up until Michael’s death. That ongoing maintenance need is crucial in order to be able to bring a claim under the Act. Settlement: Goss has reached a settlement with Michael’s family of an undisclosed amount and the terms of the settlement are confidential. The case is particularly interesting because Michael and Goss were not in a relationship for sometime before Michael’s death, and Michael was in fact dating someone else at the time of his death, yet Goss still claimed there was a maintenance obligation on Michael. This case did not reach trial but it would have been interesting to see what decision a judge would have made and whether they would have considered that Goss, as a former partner of Michael, could still be said to be being maintained by Michael when they had not been in a relationship for over 6 years. The court would have also had to consider the general financial position of Goss, and whether he had a specific maintenance need, in order to decide whether a claim for reasonable financial provision from Michael’s estate could be sustained. Goss’ current financial circumstances and earning capacity would need to have been analysed by the court and taken into consideration against the lifestyle that he had enjoyed due to the provision made for him by Michael. The court will consider what the appropriate standard of maintenance is for a Claimant in claims under the Act on a case by case basis. As the former partner of a millionaire popstar, it would be reasonable to expect that a court, if they found that Goss was being maintained by Michael at death, would have considered that the sum needed for Goss to live decently and comfortably in accordance with the lifestyle he had enjoyed would be fairly substantial. Claims under the Act can be extremely costly for all parties and a public trial of the claim would likely have been stressful for all the parties involved and created considerable unwanted media interest for the family so it is not surprising that in this instance they have chosen to enter into a confidential agreement in order to bring this matter to conclusion. Had the case gone to trial and a judge found in favour of Goss, such a high profile case could have had the potential to open the floodgates for ex-partners to try and bring claims under the Act even where they had been separated for a number of years, whether or not they were meritorious.
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Alison parry 800x800px
JMW
5 months ago
Claims in undue influence are difficult, particularly as there is often a lack of evidence. Our blog post, "Master of Manipulation - Undue Influence in Wills", looks at the case of Benjamin Fields and what undue influence is and what you must consider before bringing such a claim. "Master of Manipulation - Undue Influence in Wills" 12th September 2019 In a recent case, Benjamin Fields, a Church Warden in the village of Maids Moreton in Northern Buckinghamshire, targeted two elderly, vulnerable individuals in the community, Mr Farquhar and Miss Moore-Martin, in order to influence these individuals to alter their wills in his favour. Mr Fields has now been convicted of the murder of Mr Farquhar along with numerous counts of burglary and fraud. Miss Moore-Martin was fortunately able to amend her will before she died after Mr Fields’s crimes were discovered. Sadly Mr Farquhar was not as fortunate and he died leaving Mr Fields £20,000 and a life interest in his property. Whilst this is an extreme example of how an individual can influence someone to change their will, the issue of undue influence can be much more subtle and can mean that the wishes of a loved one are not fulfilled. Undue influence is any influence exercised over someone by coercion or fraud, whereby the testator’s own wishes are overpowered. It is important to note that persuasion is insufficient to prove that undue influence has occurred, the influence must go further than this to the extent that the influencer has manipulated the mind of testator. When considering undue influence it is important to bear in mind the following: The person making the suggestion that there has been undue influence has the burden of proving it; The physical and mental well-being of the testator at the time the suspected undue influence occurred is relevant, as this may have left them more vulnerable to coercion There must be no other explanation for the actions of the testator Likely to be highly relevant in claims of this nature are the circumstances around the drafting and execution of the will: whether a solicitor was involved, who witnessed the execution of the will, any previous wills and what they contained, as this may assist with establishing a claim of undue influence There is a high standard of proof when bringing a claim for undue influence. They are often difficult to prove as there is often a lack of evidence as, by its nature, coercion usually takes place in secret and the testator has usually passed away, making it impossible to enquire after their true intentions when it is being challenged. However, this does not mean that a claim for undue influence will not be successful and detailed consideration should be given as to the merits in any particular circumstances. If, upon the passing of a loved one, it appears that something has been left to someone who is unfamiliar to you or there appears to be inconsistencies with what you thought to be the wishes of the testator, then it may be possible that someone has influenced the testator to alter their will. At JMW we handle a wide range of disputes of this nature. If you consider that a loved one may have been subject to any form of undue influence in creating their will, our experienced team can assist you and offer expert advice tailored to your specific circumstances.
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Alison parry 800x800px
JMW
5 months ago
After the death of a loved one, it is common to arrange a funeral, burial, cremation or memorial service. This may be guided by the wishes of the loved one before they died, but if a dispute arises over funeral arrangements, who is legally entitled to have the final say? This is a sensitive area which requires expert input from lawyers; many people are often unsure as to who the law recognises as being the person with the entitlement. My blog (see below) on this topic may provide some guidance to those who find themselves in such a situation. "Funeral Arrangements: Who is in Charge?" 16th January 2020 Following the death of a loved one, it is common to arrange a funeral, burial, cremation or memorial service. This may be guided by the wishes of the loved one before they passed away, but if a dispute arises over funeral arrangements, who is legally entitled to have the final say? Whilst it is common for individuals to include their wishes relating to funeral arrangements in their final Will and Testament, it is important to note that these wishes are not binding. Therefore, whilst this can reflect the wishes of the deceased and can offer useful direction, this does not provide any guarantee that these wishes will be followed. Where there is no Will in existence, there might be nothing that gives guidance as to what the deceased would have wanted and disputes can often arise as a result. Following the death of a loved one, it is not possible for anyone to claim ownership over a person, however a right of possession exists, which is usually held by the Personal Representative (“PR”) of the deceased’s estate. If the deceased has left a Will, the PR is the Executor appointed under the Will and if the deceased has died intestate, the PR is the Administrator of their estate, who would be the person appointed in line with the Intestacy Rules. The right of possession does not fall to the next of kin as some people often assume. Further to this, the PR has a duty to dispose of the body of the deceased and therefore it is the PR who has the final say regarding any funeral arrangements. This can understandably lead to disputes, as the PR has the authority to overrule close family members of the deceased regarding funeral arrangements, which can be a particularly emotive and personal subject for those left behind. For example, if the deceased has appointed their cousin as the Executor under their Will, the cousin would become the PR of the deceased’s estate and could overrule other family members, such as the deceased’s wife and children, with regards to funeral arrangements. This can be worsened due to the emotional pressure and upset of recently losing a loved one, which can create a more hostile environment that is more likely to result in disagreements. In many cases the PR would no doubt consider and follow the wishes of the close family but in certain circumstances, this might not be possible or desirable and as such disputes can arise at what is already a difficult time and where relations may already be strained. In the case of Laing v John Poyser Solicitors [2012], the deceased’s son disagreed with the Executor’s decision to cremate his late mother (despite her wishes) and sought an injunction to prevent the Executor from arranging the cremation. In this case, a firm of solicitors were appointed as Executor of the deceased’s estate. The Judge refused to grant the injunction on the basis that the Executor was in lawful possession of the body of the deceased and therefore, they had the right and the duty to make arrangements for the disposal of the body. This demonstrates the difficulties that can arise when close family members disagree with the actions of a PR. Discussing someone’s wishes before they pass away would assist to ensure such a dispute does not arise but this is not always practical and often those loved ones left behind and the PRs are left in a difficult position as to how to proceed. At JMW we are experienced in handling disputes of this nature that may arise and we can offer professional, experienced advice that is appropriate to your circumstances. If you are involved in a dispute, please contact us to discuss how we can be of assistance.
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Alison parry 800x800px
JMW
5 months ago
Are you entitled to see someone's will after they die? My colleague, Claire Brierley, answers all of your questions in her article on the topic. Please see it below. "Are You Entitled to See Someone’s Will After They Die?" 12th February 2021 After a loved one has passed away and it comes time for their estate to be dealt with, family members and those closest to the person who died will often want to see a copy of their Will to find out whether they are due to inherit any money or possessions or just to satisfy themselves as to what the deceased wanted to happen to their assets. Before the death of an individual, their Will is a private document and, as such, there is no requirement for them to register it anywhere or share it with anyone. Most people will keep their Will at home with any other important papers, or may choose to store the original with the solicitor or Will writer that assisted with the preparation. After death, the position changes. Before a Grant of Probate From death until an application for a grant of probate has been made, only the executor(s) named in the Will are entitled to see the Will. While the beneficiaries of a Will do not have the right to view the Will itself, they are entitled to certain information, for example details of a specific legacy if they have been left one or, if they have been left the residuary estate (namely what remains in the estate once any debts and specific legacies have been paid), they have the right to know who the executors are and to be provided with an estimate for how long the administration of the estate may take. What if you are not named in the Will? If you are not named in the Will, you can request a copy from the executors. While not obliged to provide it, executors should adopt a reasonable approach and provide a copy to those that request one (unless there is a good reason not to), either as a means of reassuring beneficiaries or determining if a genuine dispute exists concerning the validity of the Will. It serves little benefit for the executors to delay access to a copy of the Will when it will become publicly available after the grant of probate. It is also possible to set up a standing search with the Probate Registry to ask that a copy of the Will is sent to you if and when probate is granted. After a Grant of Probate has been issued Once probate has been granted, the Will becomes a public document and is registered at the Probate Registry. At this point, anybody can obtain a copy of the Will by applying to the Probate Registry either online or by post and paying a fee. There may be circumstances where a grant of probate is not required for the executors to distribute the estate in question. In these situations, the Will remains a private document and it remains at the discretion of the executors if a copy is provided to any party that requests sight of the Will. If you have concerns about the validity of somebody’s Will and the executor is refusing to provide you with a copy, or if you are the executor of a Will and you are unsure if you should provide someone with a copy of a Will, you should obtain specialist advice and assistance at the earliest opportunity. Challenges as to the validity of a Will can be complex and it is therefore important to seek expert legal advice before deciding whether to proceed with, or defend, such a challenge.
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Alison parry 800x800px
JMW
5 months ago
There has been an increase in the number of contested wills over the last few years, but what is to blame for the increase? In the below article, my colleague Ian Johnston identifies 6 particularly common factors. "Will disputes on the rise: 6 circumstances creating contested wills" 30th August 2019 The number of contested wills have risen substantially in recent years. This post will set out below some of the reasons which might explain why the number of disputes is increasing: 1. Complex family structures One factor behind the increase in contested wills could be that divorce, remarriage, cohabitation and children from multiple relationships are all much more common, resulting in more complex family structures and difficulty for a person making a will to take care of everyone or keep everyone happy. 2. Lack of contact It is increasingly common for families to live further apart, which can place a strain on relationships due to difficulties regarding both communication and contact which can create scope for arguments and disputes between family members. If family members are not seeing their relatives regularly, or feel neglected by their family, those relatives may find themselves left out of a will. 3. Increased media coverage Another reason could be that individuals today are more aware of their legal rights and the possibility of bringing a claim due to the ease of access the internet allows to news and media reports regarding this area of law. This can lead to an increased appetite for litigation where individuals are dissatisfied with the content of a will. 4. Larger estates House prices have increased in recent years, meaning that in many cases the estate of the loved one can be larger, and as a result individuals may be more likely to dispute the will as there is more at stake. 5. Ageing population An ageing population means that conditions which affect a person’s capacity to carry out certain tasks or which can leave them vulnerable are more prevalent and this can mean that wills are more susceptible to challenges over testamentary capacity or undue influence. 6. Rise in ‘DIY wills’ Lastly, ‘DIY wills’ which individuals write themselves without legal advice or assistance can also lead to disputes over the validity of the will. Whilst it is possible to write a valid will without legal advice, any error can render the will invalid, or create ambiguity, and may result in unnecessary fees and delays regarding the distribution of the estate. In addition to a financial loss, this can also place a further emotional strain on the bereaved who must now deal with the fallout. These are just a few of the factors that have played a role in the rise in the number of contested wills. Our next blog will cover some simple steps that can be taken in order to try and protect your will against any disputes or challenges that could arise.
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Alec Hancock | Consultant CILEX Lawyer
5 months ago
Some accidents at work are caused by failure to provide any or any adequate PPE. I act for many clients who seek compensation for their injuries and can do so because I act on a No Win, No Fee basis www.accident-at-work.legal
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Alec Hancock | Consultant CILEX Lawyer
5 months ago
This month I will be representing my client at trial for his holiday sickness claim. This will literally be a “bean to cup” representation. I drafted the initial letter of claim which started his claim and I will be before the Judge at the end of the month advocating his case. I act for my clients on a no win, no fee basis and in claims which other firms aren’t willing to run due to the risk and costs www.holidayillnessclaims.com
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