1. The beginning:
What are Inheritance Disputes?
There are many different types of claims which may come about as a result of a Will, Inheritance or lack of provision.
- Claims by unmarried cohabitees where there is no Will.
- Claims for reasonable financial provision by family or dependants.
- Rectification of errors in Wills.
- Disputes with, or between, beneficiaries.
- Interpretation of ambiguous terms in a Will.
- Disputes with, or between, Executors.
- Application for removal of Executors.
- Disputes relating to the Grant of Probate.
- Claims for promises which have been relied on to be met.
How common are they?
It is widely reported that in recent years the number of people contesting a Will has dramatically increased. It is a favourite topic attracting national media interest with many high profile cases dividing public opinion on the merits of being allowed to challenge someone’s final wishes.
There were 88 claims under the Inheritance Act in 2013, rising to 104 in 2014 and 116 in 2015. In 2016 there were 158 cases which shows a particularly marked increase that year. This may be attributable to the widespread publicity of the case involving Mrs Heather Ilott which had been heard in the Court of Appeal in 2015. The court had significantly increased the award made to Mrs IIott who, as an adult child had been excluded from her estranged mother’s Will. Before this case the success rate of adult children in inheritance disputes was limited. The IIott case was appealed to the Supreme Court in 2017; the Supreme Court ruled that the Court of Appeal had no real basis for changing the initial judgement in the first place.
It will be interesting to see the effect that Ilott v Mitson may have in relation to the number of Inheritance Act claims in future years.
What is the cause of all of these claims?
There is much speculation on why we are seeing a rise in inheritance disputes. However, some factors include:
- The ‘modern’ lifestyle – the increase in divorce and remarriage, and cohabitation, together with families living further apart, leading to more complicated family structures, so there is more scope for argument;
- ‘The house price boom’ – Society becoming more wealthy owing to continuing house price rises, so there is more value to fight over;
- ‘The ‘compensation culture’ – people becoming more aware of their legal rights and ability to bring claims if there is something amiss, so there is more of an incentive and appetite to litigate; and
- ‘The ageing population’ – Increase in dementia rates meaning more people are making Wills when they may not be in the best of health, so the Wills are more susceptible to challenge.
- If you have been cut out of a Will, not been left reasonable financial provision, or were promised something which has not materialised.
2. The middle:
So how does it affect you?
The starting position – in relation to disclosure of information regarding a deceased’s Will – is that the information should only be made available to the personal representatives of the estate (or to others with their consent) prior to obtaining the Grant of Administration. However, this does not apply where a request for information is made to the Solicitor or Will Drafter who prepared and/or witnessed the execution of the Will and there is a dispute in relation to that Will.
In these circumstances the Law Society has recommended, since 1959, that the Solicitor or Will Writer should make a statement outlining the circumstances surrounding the instruction and execution of the Will and obtain consent from any party appointed to undertake probate proceedings or someone who has a reasonable claim against the Will. In 2000 the case of Larke v Nugus endorsed this long standing recommendation, which means that a request for information now carries judicial weight.
What is a Larke v Nugus request and how to deal with them?
Cases involving disputed Wills very often feature a Larke v Nugus statement.
The name, Larke v Nugus, originates from a legal case that determined the law on requests for information regarding the circumstances surrounding the instruction and execution of a Will [Larke v Nugus [2000] WTLR 1033].
A Larke v Nugus statement is prepared by the Solicitor or Will Writer who originally drafted the disputed Will or witnessed its execution. These statements are frequently requested by the Claimant’s solicitor as evidence against the validity of a Will on the grounds of lack of testamentary capacity, undue influence, want of knowledge or approval or forgery.
These requests can often be a fishing expedition and is sometimes not the correct way of obtaining the requested information.
The challenges and difficulties of those responses
Challenges may not come to light until a significant amount has time has passed making the task of obtaining and compiling the information requested an extremely lengthy process.
The Solicitor or Will Drafters recollection of the facts and issues may not be as clear as they were, they may not have stored contemporaneous notes that address the issues which will need to be responded to in a Larke v Nugus request.
With an increasing trend of contested Probate the requirement for systematic record keeping or electronic storage has never been more important.
3. The end:
How to avoid Inheritance Disputes
A request for a Larke v Nugus statement may seek some or all of the following information and documentation
- How long the Will Drafter had known the deceased.
- Who introduced the Will Drafter to the deceased.
- The date the Will Drafter received instructions from the deceased.
- Contemporaneous notes of all meetings and telephone calls, including confirmation of where the meeting took place and who else was present at the meeting.
- How the instructions were expressed.
- What indication the deceased gave that they knew they were making a Will.
- Whether the deceased exhibited any signs of confusion, loss of memory or ill health.
- Whether and to what extent earlier Wills were discussed and what attempts were made to discuss departures from the deceased’s earlier Will-making pattern; what reasons the testator gave for making any such departures.
- How the provisions of the Will were explained to the deceased.
- Who, apart from the attesting witnesses, were present at the execution of the Will and where, when and how this took place.
When taking client instructions these potential questions should be considered as any relevant documentation may be requested as part of a Larke v Nugus request in the future when the facts may not be easily recalled.
Ways to deal with Larke v Nugus requests
During this webinar our team of experts will be joined by a guest presenter, Martin Holdsworth.
Martin owns and runs IDR Law – the only law firm in the UK that specialises solely in Inheritance Dispute Resolution.
Register now to find out the best way to deal with Larke v Nugus requests and ensure that you are fully equipped to respond to future requests.
Book your place on our FREE Webinar now to learn more!
All webinars commence at 10am and finish at 11am.
This article was published by the submitter (as named above) as part of their advertising agreement with Today’s Wills & Probate.
The views expressed in this article are those of the submitter and not those of Today’s Wills & Probate.
