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The case of Clitheroe v Bond is a dispute between two siblings concerning the validity of two Wills executed by their late mother. The question for the Court was whether their late mother died intestate or whether the Wills executed were valid. If the latter, it would mean the entire estate, comprising of £400,000.00, would pass to the son in its entirety.

At the original trial, the original Wills were not admitted on the grounds of incapacity. This was as a result of the late mother’s affective disorder, including complex grief reaction, instance delusions and depression.

The son appealed this decision arguing the deputy master had applied the incorrect test. The son also argued the wrong approach for delusions had been applied. In essence, the basis of the appeal was that the incorrect test had been applied for testamentary capacity.

The High Court have provided clarification on the correct test to apply when assessing testamentary capacity.

Mrs Justice Falk confirmed the correct test for assessing whether a testator had the capacity to make a Will as set out in the 19^th Century case of Banks v Goodfellow. Mrs Justice Falk further clarified the position in regards to delusions.

As a result of this clarification, an adjournment of three months was provided to the parties to allow them to reflect on their positions and see if there was an opportunity to reach an agreement.

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282 / 01908 660966 or at litigation@franklins-sols.co.uk.

If an individual executes a Will they do so because they wish to dispose of their estate as they please. Equally, if an individual does not execute a Will then their estate will be distributed in accordance with the Intestacy Rules.

What if a deceased does not leave you enough or nothing at all whether in their Will or under the Intestacy Rules and you were financially dependent on them?

The Inheritance (Provision for Family and Dependants) Act 1975 (“The Act”) is an Act of Parliament that provides protection to individuals who have been financially dependant on a deceased.

The Act will come into play when a Will or the Intestacy Rules fails to provide a “reasonable financial provision”. The Act provides protection to spouses, civil partners, co-habitees, children and any other dependants who have survived the deceased and been left without the relevant means to survive.

Am I eligible to make a claim under the Act?

There are certain categories that must be explored and satisfied in order to be eligible to present a claim to Court and these are as follows:

1. The deceased must have been living in England and Wales at the time of death;
2. As an applicant, you must be one of the below as outlined in Section 1 (1) of the Act:
   • The Spouse of Civil Partner of the deceased;
   • A former Spouse or Civil Partner of the deceased who has not re-married or entered another civil partnership
   • A child of the deceased;
   • A person treated like a child by the deceased by virtue of a marriage of civil partnership;
   • A person who was immediately before death of the deceased maintained, either wholly or partly on the deceased;
   • A person who was cohabiting with the deceased and living with them for a period of at least two years.
3. If the above is satisfied, then there is a strict time limit to lodge an application to Court of six months from when the Grant of Probate or Grant of Letters of Administration was issued from the Probate Registry.

What will the Court consider when determining my application under the Act?

The Court will need to consider whether there has been reasonable financial provision for you. Determining this is subjective and based on each individual application and the Court when deciding the same will do so on several factors.

What factors will the Court consider?

The Court will need to consider the applicant’s needs and resources and consider what is reasonable for them to receive for their own maintenance. Such factors are set out in Section 3 (1) of the Act which can be found below:

“(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.”

Are the above factors same for each applicant?

No. Any claim under the Act made by a spouse or civil partner are different and the Court when determining what is reasonable will look further than what is required for maintenance and consider the following factors as set out in Section 3(2) of the Act which are summarised below:

1. The age of the applicant and the duration of the marriage;
2. The contribution the applicant made to the welfare of the family;
3. What the applicant would have reasonably expected to receive had the marriage been terminated by a divorce.

Is Court the only option?

Given the time, emotion and cost that can go into pursuing such a claim it is always advisable to consider Alternative Dispute Resolution (ADR) as an option to resolving disputes at the earliest opportunity. ADR is a Court free environment and is cost effective and quicker than going to Court. Here at Franklins Solicitors LLP we embrace all forms of ADR.

Claims such as these can strain relationships and divide families. Given the strict time limits it is imperative if you are contemplating a claim under the Act to seek specialist advice to ensure a full case plan is prepared to outline your options and next steps.

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282/ 01908 660966 or at litigation@franklins-sols.co.uk.

The simple answer is yes.

A Will exists to do a great deal more than simply settle your financial affairs. Avoiding disputes between family members, assigning guardians for any children, or setting out funeral wishes are also incredibly important. It may be that you want to ensure that a sentimental item will be passed to a certain person, or in some circumstances you may wish for someone not to benefit from your estate at all. You can also choose to leave gifts to a loved one, friend or charity for example. Without a Will you lose influence over these types of matters. A correctly drawn up Will gives you peace of mind that you have documented your wishes and have specified where your assets are to pass on death.

What happens if you do not have a Will?

Without a valid Will, the rules set out by government, known as the rules of intestacy, determine how your assets will be dealt with – regardless of any wishes you may have had.

The most common misconception is that under the intestacy rules, everything will pass to a spouse or civil partner. This is simply not the case. Consequently, you may be leaving your spouse or partner in a very vulnerable position should you pass away without a Will in place.

The law also does not recognise cohabiting couples within the intestacy rules, which may leave your partner in a vulnerable position should you pass away.

There may also be members of your family, close friends or charities you would have liked to benefit, who won’t under these rules. It could also mean that someone may inherit from your estate that you have not had contact with for many years or simply would not have wanted to benefit.

So, what types of decisions can you make within your Will?

A Will can cover many different aspects depending on your circumstances. In the most common situations, a Will may include some of the following:

• The appointment of executors – these would be individuals that you Trust to collect in all assets within the estate and to distribute them in accordance with your wishes;
• The appointment of guardians – in the event that you pass away and have minor children, you have the ability within your Will to appoint testamentary guardians, someone who you Trust implicitly, to look after your children;
• Who you wish to benefit from your estate – you have the ability to leave your estate to whomever you wish. This may include spouses/ civil partners, children, grandchildren, or other family members, friends or charities; and
• Gifts – you may also wish to include some gifts of sentimental items to specific individuals or gifts of money to beneficiaries who are not included as residuary beneficiaries.

There are various other matters which you may wish to include within your Will, for example Trusts for minors, business Trusts, or Trusts over properties, but these do require specialist advice and are dependent on your circumstances.

Here at Franklins Solicitors LLP we are dedicated to assist where we can. If you would like to obtain advice or guidance regarding the preparation of a Will, Lasting Powers of Attorney or would like assistance with a Deputyship Application, please contact our Private Client team on wills@franklins-sols.co.uk or call Northampton: 01604 828282 / Milton Keynes: 01908 660966.

In short and simple terms – yes.

If you are named as executor in a deceased’s Will and you choose to take up such a role, you have certain responsibilities and duties, which are imposed in law.

In a recent case David Loveday was appointed executor under the late Anita Border’s Will. The terms of the Will were clear in that after testamentary debts were paid, the residuary estate would be split equally between his partner Emma Cullen and Parminder Gibbs.

Parminder Gibbs did not receive her half of the residuary estate as bequeathed under the terms of the late Mrs Border’s Will.

This was because David Loveday used the monies for holidays, a new car and to settle his debts. Following a lengthy inheritance dispute, which went to the High Court, Mrs Gibbs demanded her rightful inheritance and to remove David Loveday as executor.

Despite defying a Court order to produce bank records showing where the inheritance had gone, he later admitted he had spent it all and pleaded guilty at Woolwich Crown Court for fraud.

This is an important case indicating the right of beneficiaries to bring legal claims if an executor is refusing to provide the rightful inheritance in accordance with the terms of the Will. It also highlights the duties of an executor which are enshrined in law.

If you require legal advice or assistance on your duties as an executor or to pursue an executor for not adhering to the terms of a Will, then please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282 / 01908 660966 or at litigation@franklins-sols.co.uk.

Not necessarily.

The Court of Appeal recently held that £2.2 million paid to Hilary Harrison-Morgan had to be repaid after she inherited it from her late ex-partner and co-habitant’s estate.

The late Dr Kahrmaan started a relationship with Hilary Harrison-Morgan and once this developed they began to cohabit and then later had twin sons together. They lived together in their London home in Belgravia. They split up in 2014 with the late Dr Kahrmaan returning to Germany.

Despite Miss Harrison-Morgan and her children living in the property a development company made an offer, the terms of which rested upon the property being sold with vacant possession.

Dr Kahrmaan died whilst such discussions were ongoing leaving all the parties involved in the lurch.

The appointed executors of the late Dr Kahrmaan’s estate were his daughters from his previous relationship. Miss Harrison-Morgan alleges she struck a deal with the executors, who had the requisite authority to enter into such a deal, that the profits of the house would be split between her and the late Dr Kahrmaan’s four children.

Once sold, the £4.4 million in profits was split in accordance with the purported agreement with £2.2 million being transferred to Miss Harrison-Morgan.

Following this, one of the executors, being Alice Kahrmaan commenced legal proceedings against Miss Harrison-Morgan on the grounds that there was an express common intention constructive Trust which already existed with the late Dr Kahrmaan’s business partner and such payment was illegal and in breach of the terms of the Trust.

When the matter went before the High Court, Miss Harrison-Morgan argued that the arrangement was made with the late Dr Kahrmaan on the basis that payment would be made to her if she complied with vacant possession, which she did.

On appeal, the Court of Appeal found in favour of the executor and ordered that the money should be returned to the pre-existing Trust intended for the four children of the deceased.

All orders were stayed until the final appeal is made with the case heading for the Supreme Court.

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282/ 01908 660966 or at litigation@franklins-sols.co.uk.