Disputing a Will

 

Mrs X consulted us about being cut out of her father's Will. Her father, Mr Y, had previously made a Will whereby he left his entire estate to be divided equally between Mrs X and one of his second wife's children, Mr Z. Immediately prior to his death he made a new Will leaving everything to Mr Z and appointing him as sole Executor of his estate.

Mrs X said that at the time her father made his last Will he was very ill which is why he was in hospital, she also informed us that he was suffering from dementia. She was concerned that her father did not know what he was doing when he made his last Will in hospital.

We agreed to investigate matters for Mrs X. The starting point was to obtain the medical records for Mrs X's father which covered the time that he was in hospital. We were able to obtain these records after making an application under the Access to Health Records Act 1990. The records showed that Mrs X's father was extremely confused during his time in hospital and that the doctors believed that he was suffering from dementia.

After receiving the medical records it was clear that there may be grounds to challenge the validity of the Will. However litigation of this type can be extremely costly for the person trying to bring the case. We therefore needed to obtain further evidence and information.

Sarginsons Law held the title deeds for Mr Y's property. With the deeds was a copy of Mr Y's second wife's Will. After reviewing the Will it was clear that it was a "mutual" Will. A mutual Will is made with another person and both parties agree not to amend or revoke their wills without the consent of the other. This agreement is a contract. The result is that neither party should change their Will after the death of the other party as to do so would be a breach of contract.

The fact that the Will was a mutual will meant that Mr Y should not have made any other Wills unless he received written authority from his wife that he could do so. As his second wife had passed away she could not consent. Under the mutual Will Mrs X was to receive a fifth of either Mr Y's estate or his wife's estate with the other four fifths being divided equally amongst Mr Y's wife's four children.

With this information we approached Mr Z who then appointed a solicitor to act on his behalf.

We argued that Mr Y's last Will was invalid because he lacked the capacity to make a Will as evidenced by the medical records. We also argued that any Wills made after the mutual Wwill were a breach of contract. In light of the comprehensive information presented to him Mr Z agreed to pay to our client one fifth of her father's estate representing the sum that she would have been entitled to under the mutual Will. There was no need to issue proceedings against Mr Z which saved potentially large legal costs.

Although the case took approximately 13 months to resolve Mrs X was very pleased with the result.

16th December 2018

Sarginsons Law