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Recent Contentious Probate and Trust Cases


Contentious probate and trust cases are always in the news and the more sensational cases are increasingly finding themselves in the mainstream news especially when they are salacious.

Here is a summary of some recent Contentious Probate and Trust cases from the last couple of months.

Barrett v Bem

It is long established law that when beneficiaries are involved in some capacity in the making of a will whether that be when instructions are given or they are present at execution, serious suspicions are raised which need to be considered and discounted.  Best practice for private client lawyers is always to ensure that beneficiaries are not present at any stage.

However, as we all know, especially as contentious probate lawyers, life is not always that straightforward.  In Barrett v Bem the testator made a will in hospital three hours before he died.  Due to the state of his health when he attempted to sign the will, his hand was shaking so much that he could not sign his name.  When this matter first came to Court (Lavin (Deceased) in 2009), the evidence of the sole beneficiary (his sister) was that she had signed the will on his behalf and that it was witnessed by two nurses.

The Claimant successfully argued that the will was invalid on the basis that it had not been signed by the testator as the law on this point requires that, to be valid, a will must be, “in writing, and signed by the testator, or by some other person in his presence and by his direction”.

The matter returned to Court for a retrial after the sister had died and her daughter stepped into her shoes. The evidence had changed and the witnesses attested that the sole beneficiary had in fact come to the testator’s assistance when he was attempting to sign the will and “between the two of them, they signed the will”.  However, the handwriting expert found that the signature was not a guided one.

The Court held that: (1) The law in this area was clear; a testator could either sign the will himself or direct another to sign it on his behalf provided there were two witnesses.  The signature would be valid provided that the testator made a positive and discernable contribution to the signing process as opposed to simply abstaining from preventing the signing. (2) It was clear that the testator had wanted to make the will and had clearly stated and understood the dispositions he wished to make. (3) The combination of the testator’s failed attempt to sign, together with his allowing the sole beneficiary to sign on his behalf was good evidence of his intention and the fact that he knew and approved the contents of the will.  This was sufficient to satisfy the requirements of the Wills Act 1837.  (4) Whilst the law renders any gift to a beneficiary who is also an attesting witnesses null and void, there was no such law for a beneficiary signing at the direction of the testator. 

The Judge in this case did comment that it would be helpful for the Courts to legislate in this area as it is not desirable that beneficiaries should be permitted to execute a will which is to their benefit.

Cowderoy v Cranfield

This is a seemingly straightforward case which is difficult to believe ever reached the Court door bearing in mind the apparent lack of evidence. 

A granddaughter of the deceased brought an action seeking revocation of the Grant of Probate and asked the Court to find that a will made 2 years before the testator died was invalid.  The will bequeathed the entire estate to a neighbour who had become a family friend and who had also become a carer for the deceased in her latter years.

The Claimant argued that the will was invalid on three grounds (1) the testator lacked testamentary capacity, (2) that she did not know and approve the will’s contents, and (3) that the will had been procured by undue influence on the part of the sole beneficiary.

The Judge dismissed the Claimant’s claim finding that there was no evidence to support any of the three grounds on which the granddaughter’s case was brought.  Whilst the Judge found that due to the deceased’s propensity to drink alcohol, combined with her medication meant that she had “good days and bad days”, there was no evidence that on the days when she gave instructions for her will and executed it that she did not either have the mental capacity to do so or that she did not understand what she was doing. 

And finally…

The Duke of Manchester, Alexander Charles David Drogo Montagu, who is the Australian born 13th Duke of Manchester and a distant relative of Diana, Princess of Wales has found himself in the news over a dispute regarding his illegitimate children.  He is domiciled in California.

The Duke met a woman in a country and western night club in California who he subsequently married in 1993 a week before she gave birth to their son Alexander.  6 years later they had a second child, Ashley.  The Duke had however already married another woman in 1984 and had failed to disclose this to his new wife.  The marriage was therefore bigamous and void.

The case came before the Court on the question as to whether the children were entitled to benefit from their father’s estate.  The Duke divorced his first wife in 1996 and separated from his second wife in 2007.  The Trustees of the Duke’s estate ceased paying the children maintenance in 2009.  They asked the Court to decide whether the children were “issue” or “descendants” of his ancestor, the 1st Duke of Manchester as only then could they benefit from his estate.  One of the complicating questions was one of domicile as the laws of Australia, California and England all had to be considered.

On 19 July 2011 the Judge held that the Trustees were entitled under the terms of the settlements to provide for Alexander and Ashley.  He also stated in rather bold terms that it would be wrong for England “to stand aloof in barbarous insularity from the rest of the world” by failing to failing to recognise the rights of children of bigamous marriages.

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