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An Unintended Will

John Melville-Smith, contentious trusts and probate partner, summarises a recent case in which he acted for a young man who faced losing his...

The most satisfying cases for any litigation lawyer are those which produce unambiguous, unqualified justice for a client.

Paul (not his real name) lost his father when he was a baby and his mother, ‘Karen’ died of cancer leaving him an orphan, aged just fifteen.

At the hospice a few days before she died in 2015, in circumstances of rapidly dwindling capacity, Karen made her last Will, using the services of a solicitor. She appointed her sister, ‘Ruth’ as Paul’s guardian until he came of age and then left her estate, consisting mainly of Paul’s childhood home, to Ruth:

“I give devise and bequeath all my estate whatsoever and wheresoever to my sister Ruth and appoint her the sole Executrix of this my will and guardian to my infant son Paul…”.

The Will created no trust in Paul’s favour, expressly or by implication. It was an absolute gift of the estate to Ruth. When Karen died some ten days later, her estate passed absolutely to Ruth…

…which was far from ideal but might not have mattered greatly in normal circumstances. Ruth, unaware of the precise legal effect of her sister’s Will, never regarded herself as the recipient of Karen’s estate other than for the benefit of Paul until he was 18. She regarded herself as his guardian, of him as a person, and of his inheritance. When he reached eighteen, she transferred ‘his’ house to him and gave him his mother’s savings.

Unfortunately, Ruth’s trustee in bankruptcy saw things somewhat differently. It transpired, following Karen’s death and her ‘inheritance’, that Ruth’s honesty went no further than her sister’s estate. She had faked qualifications to become the financial director of a company, then spent most of its funds on business class flights, lavish holidays and hotel stays, as well as making a loan to a foreign ‘boyfriend’ who, unsurprisingly, then disappeared with the money.  She was jailed and also made bankrupt.

Under the Insolvency Act 1986, a bankrupt’s estate vests in the trustee immediately upon appointment and does so “without any conveyance, assignment or transfer”, that is to say automatically.

It followed that Karen’s estate had passed from Ruth to Ruth’s trustee in bankruptcy. Ruth had little else and her trustees wanted to retain Karen’s estate, not least to pay themselves.

Such was the position when Paul instructed me. What could be done?

The Will was undoubtedly negligently prepared; it was unimaginable that Karen intended to leave her estate beneficially to Ruth. To the extent that she understood what the Will meant when she signed it, she intended a trust in favour of Paul, her 15-year old son to whom the evidence proved she was devoted and of whose existence the solicitor concerned had been fully aware. The fact that, years before her illness, Karen had made a previous Will leaving her estate to Ruth on express trust for Paul – such that the 2015 Will was not only a disaster in its drafting but entirely unnecessary – is one of the bizarre coincidences of circumstance which produced this case.

Relying on a negligence claim against the negligent solicitor, however, presupposed that Paul had lost the estate to Ruth’s creditors. That was obviously the route favoured by her trustee: allowing them to pay the creditors and themselves and leaving Paul to recover from the insurers. It would, however, have meant him losing his childhood home before hopefully recovering the funds to buy a new one.

Another option was a rectification claim. The Administration of Justice Act 1982 s20 states that, if a court is satisfied that a Will fails to carry out the testator's intentions, in consequence of a clerical error or a failure to understand the instructions, it may order that the Will be rectified. But there was no evidence of a clerical error and the negligent solicitors had lost the Will file containing any evidence of the instructions given (if it had ever existed at all) and it is vital to be able to prove what the testator's intentions were, not just that they probably were not what the Will said.

A further option was a claim under the Inheritance (Provision for Family and Dependants) Act 1975, not infrequently the subject of public interest stories in the popular press. Paul undoubtedly had a claim as a minor child of Karen on the footing that her Will, as drafted, was not such as to make reasonable financial provision for him. But such a claim presupposes the validity of the Will itself, it needs to be brought within 6 months of the Grant of Probate and we were three years later (though the Court can exercise a discretion to extend time) and Paul was not guaranteed to recover all the estate or to keep his home.

The best option was to challenge the validity of the Will itself, if necessary by way of an action to set it aside, if possible by persuading Ruth’s creditors that such an action was likely to succeed and that they should therefore disclaim any entitlement to Karen’s estate. The Court was clearly going to be hugely sympathetic to Paul and the nursing home’s medical evidence concerning Karen’s capacity when she made her Will was suggestive of incapacity, with the result that I was successful in settling the claim for around £15,000, restoring the balance of Karen’s estate – and most importantly her house – to Paul.

The negligent will-drafter’s insurers then paid Paul’s legal costs to date, leaving Paul with his mother’s estate largely intact. 

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