Contentious Probate – A Case Study

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    Looking at case law is the easiest way to assess how courts will deal with matters of contention with Wills.

    The recent case of Shah v Joshi considered some of the most common causes for claims.

    Mr Shah questioned the document which was claimed to be his mother’s last Will and Testament. The Will left the majority of the estate to his sister which contradicted an earlier Will which left most of her estate to him.

    The Will was dated just four weeks before the deceased’s death. It was written in English
    though she spoke only Gujarati and contained no attestation clause stating that it had been
    read or translated to the deceased who was also illiterate.

    The other fundamental claim against the validity of the document related to the signature of the deceased. Not only was the writing itself inconsistent with the deceased’s style of writing but also read (in Gujarati) Nirmalaben Kantibhai Shah. Mr Shah claimed his mother was known by the name Nirmalaben Kantilal Shah and, as she was not able to read or write, would not have known
    how to write her name any other way.

    Mr Shah claimed that the signature was a forgery and, even if it wasn’t, that his mother was too ill to understand and approve the contents of the Will. He also claimed, under the Inheritance Act, that it did not make reasonable financial provision for him and his family. The property which he shared with his mother (and owned a 1/3 share) before her death had been left to his sister in the new Will leaving them homeless.

    The trial involved a hand writing specialist, an expert on Gujarati custom and practice and
    medical evidence in relation to capacity. The solicitor who made the Will was called to give
    evidence along with the witnesses.

    The judge found that the signature had indeed been forged and could not have understood the contents given her mental condition at the time.

    The lessons that can be learnt from this are those which are repeated time and again in case law.

    Attending an attestation, especially where circumstances are not ‘normal’ is best practice. Where the client insists on making their own arrangements ensure that instructions are clear and documented.

    Checks on capacity should also be recorded and keeping comprehensive file notes on all aspects of taking instructions is vital. Will writers can be required to provide a statement of evidence in accordance with the case of Larke v Nugus and these are much less likely to be open to criticism where notes are full and detailed.

    Full advise should be given to clients of the possibility of future claims, especially where
    there are directions within their Will to disinherit certain individuals. A letter to explain
    their choices to be kept with the Will may also help to avoid litigation.

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    About Matt Walkden

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