Archive for March, 2010

Contesting the validity of a will – Larke v Nugus

Wednesday, March 31st, 2010

Contentious Probate

Contesting the validity of a will

Larke v Nugus

A will is a deed which can only be declared invalid in the following circumstances:

  • Due to a technical reason, for example if it has been witnessed incorrectly.
  • If the person making the will lacks testamentary capacity to do so. The test for capacity centres around the will maker’s ability to appreciate and understand the nature of what they are doing, they do not however have to appreciate the detailed financial implications of what they are doing. Testamentary capacity is a question of fact in each case.
  • If there is evidence of undue influence surrounding the making of the will. Undue influence requires an element of coercion upon the will maker and is a question of fact in the circumstances. Obtaining evidence of coercion for this sort of claim is usually very difficult.

Each of the above requires an investigation into the circumstances surrounding the making of the will. If you have suspicions about the will, the first stage in investigating a claim would be to request a copy of the will and the contemporaneous documents from the solicitor who prepared the will. This is done in the form of a Larke v Nugus request which places an obligation on the solicitor to provide both the papers and a statement which should include information such as the circumstances under which the deceased made his or her will, how he or she gave instructions to the solicitor about his or her intentions and whether he or she exhibited any signs of memory loss or confusion at the time, who made the appointment and who attended the meeting to discuss will instructions.

The production of this information allows for a full investigation into any potential claim to dispute the validity of a will.

Undue Influence Case

Tuesday, March 2nd, 2010

Another highly publicised case is currently being heard in the High Court, concerning a dispute over a Will and whether undue influence was exerted over the testator by his two daughters.

The case involves a Will of a farmer from Norfolk, the late George Key who died at the age of 89 in 2008. Mr Key had two sons and two daughters. The two sons, Richard and John Key, both in their 60s worked on the farm and also on their own farms and were expected to inherit the family farm, Hall Farm in Mundham on their father’s death.

They had both worked in the family business for over 50 years, since they were 15 years old. In a Will dated 2001, they were to inherit the vast majority of the £1.2m estate. Their two sisters and defendants in the action were due to inherit £15,000 each under that Will.

In 2006 another Will was prepared which left the two daughters £300,000 each. Mr Key died two years after that Will was executed. The two brothers claimed that their father was incapable of making a decision of that nature as he was grieving for his wife of 65 years who had died only days before the new Will was executed.

The two brothers also claim that their father was suffering from some form of Alzheimer’s disease and that their sisters plied their father with alcohol and sleeping tablets in order to encourage him to make a Will in such terms.

The daughters are defending the claim and allege that there is insufficient evidence to support their brothers’ claims. They consider that it was logical for their father to have left them £300,000 each and that he was trying to treat his children equally.

Expert medical evidence has been produced for both sides and offers differing opinions over Mr Key’s capacity to make decisions about his Will.

Although ultimately it will be a matter for the trial judge to decide on which evidence is more plausible.

Evidence has also been provided by the solicitor who drafted the Will, the housekeeper and the parties involved in the case.

The case continues in the High Court.