Grounds for contesting a Will

Grounds for contesting a Will

The loss of a loved one is an emotionally distressing time but with the value of estates increasing and becoming ever more complex it is no surprise there has been a significant increase in the number of inheritance disputes with several high-profile challenges being reported by the press recently. 

Will Disputes

English law is relatively unusual in recognising the concept of testamentary freedom; other jurisdictions have fixed heirship rules and govern how an individual’s estate will pass. However, this does not mean Wills under English law are exempt from challenge.

There are many examples of challenges to Wills that can be cited. These range from the technical (the Will was not properly executed) to challenges that the Will does not make reasonable financial provision for those to whom the deceased owed an obligation.

Here are just a few common challenges to Wills:

  1. The Will has not been properly executed;
  2. The deceased did not have the mental capacity to execute the Will;
  3. Lack of knowledge and approval;
  4. Undue influence;
  5. Fraud

The Will has not been properly executed

A challenge to a Will on this ground occurs when the legal formalities for making a Will are not observed.

The standard formalities for executing a Will are set out in section 9 of the Wills Act 1837 and these include:

  • The Will must be in writing and must have been signed by the deceased (or another could have signed it but it must have been in the presence of the deceased and at their clear direction)
  • The deceased must have signed it with the intention of creating a valid Will;
  • The signature must have been made or acknowledged in the presence of at least two witnesses present at the same time; and
  • Each witness must have signed the Will in the presence of the deceased.

If any of the above are not met, the Will may be invalid.

Mental Capacity

A person must be of sound mind when making a Will. If a person does not have the mental capacity at the time of execution the Will may be the subject of challenge.

Lack of knowledge and approval

The deceased must have been aware of the content of their Will. If it can be established the deceased did not know the content or approve the content of their Will it is open to challenge.

Where a Will was executed by the deceased correctly and provided the deceased had the necessary mental capacity then knowledge and approval will be presumed.

However, issues of knowledge and approval can arise for certain categories of persons and in these circumstances the Court will require sufficient evidence to prove they understood and approved the content of their Will. This includes, for example, those who are blind, deaf or illiterate.

Similarly, where a Will has been executed in circumstances which give rise to suspicion the Court will want evidence to dispel any doubt. Each case will turn on its fact but examples of situations which may excite the suspicions of the Court are:

  • where the terms of the deceased’s Will do not correspond with what they said to others about their estate after its execution;
  • where the deceased had comprehension difficulties and/or English is not their first language;
  • the execution of the Will was not supervised by a solicitor

Undue Influence

A challenge to a Will on the grounds of undue influence will occur when the deceased was coerced into making a Will they do not wish to make. The coercion can take the form of threats and manipulation as well as physical harm.

In cases of a Will there is no presumption of undue influence and to prove undue influence there must be clear evidence. The bar for establishing undue influence is, therefore, a high one and whilst not impossible successful challenges are rare.

Fraud

If the true intentions of the deceased are not contained within the Will it may be possible to challenge the Will on the ground of fraud.

Examples of fraud include circumstances where somebody else impersonated the deceased in order to execute a Will or where the deceased was deceived into making a Will on certain terms based on a false premise.

Unlike undue influence fraud does not involve a degree of coercion but, like undue influence, fraud can be difficult to prove not least of all because the deceased will not be able to give evidence.

Contesting a Will

To try to avoid any disputes it is advisable to make sure your Will is prepared by an experienced solicitor and that it is kept up-to-date.

However, disputes over Wills do and will arise and if you feel that you have grounds to challenge a Will then it is important to act quickly before the estate is distributed and because certain challenges are subject to strict time limits.

Colman Coyle has considerable experience in advising in relation to the preparation of Wills and experience dealing with inheritance disputes.

 

If you would like to discuss any of the issues raised here, please contact Adam Palmer on +44 (0)207 354 3000 or adam.palmer@colmancoyle.com

 

Understanding Mediation: A Guide to the Process England & Wales

Understanding Mediation: A Guide to the Process England & Wales

 Q1.      What is Mediation?

 Mediation is a process whereby the parties to a dispute attempt to reach a resolution by agreement with the aid of a third party (the Mediator).

Q2.      Who can act as a Mediator?

The parties may choose anyone they wish to act as a Mediator. There is no requirement for the Mediator to have any particular qualifications.  In practice parties would normally seek to appoint a Mediator with a good reputation and experience of having conducted mediations previously. Often, but not always, the mediator is a lawyer. Howard Colman of our firm is a trained mediator.

There are several well respected organisations that maintain panels of experienced Mediators and are able to recommend possible Mediators to the parties if asked to do so.

Experienced litigators will have come across many Mediators in practice and so will usually be in a position to recommend Mediators who they have seen operate successfully in the past.

Q3.      Does a Mediator need experience in the subject matter of the dispute and/or legal experience?

Whilst often parties will select a Mediator who has experience in the subject matter of the dispute (for example a surveyor in a property dispute) or alternatively a lawyer where there are legal issues involved, this is not essential and indeed some people consider it would be better to have a Mediator without any such knowledge given that his or her role is not to decide who is right or wrong but to facilitate an agreement.

Q4.      Is a party obliged to participate in a Mediation?

 In general there is no obligation on a party to participate in mediation. However many businesses have obligations to do so particularly in disputes with consumers either under their contractual terms or under the terms of their particular trade regulators or bodies. 

 The English Courts have, at least until recently, taken the view that, whilst they can and should encourage the parties to mediate they cannot force them to do so. They have made it clear in a number of cases that if a party unreasonably refuses to mediate they may suffer costs consequences even if they are successful in their case.

 However, this is about the change. The government recently (July 2023) announced plans for compulsory referral to mediate for all small claims (generally those under £10,000) and also indicated this will be extended in the near future to those valued up to £25,000. It has also given an indication that there is likely to be a further extension to claims of higher value in the reasonably near future.

Q5.      What role does the Court play in Mediation?

In England and Wales the Court usually does not play any direct role in mediation. Whilst the Court will encourage (and sometimes insist upon) parties attempting mediation, if they choose to do so the mediation will be selected by the parties, not the Court and the process will be conducted privately without the involvement of the Court. However, once the new rules for compulsory mediation come into force they may change, particularly for small claims.

 Q6.      How does Voluntary Mediation work in practice?

 As mediation is a consensual process there are no fixed rules and the parties are free to agree any procedure they wish. In practice however, most mediations follow a fairly similar route.

 The parties select a Mediator and then he or she contacts each party in advance of the mediation to formally agree the terms of the mediation and to establish at least some of the facts about the dispute. 

 Usually each party will then prepare a document (a Position Statement) setting out it’s view of the dispute and what it wishes to achieve.  Position Statements are given to the Mediator and exchanged with the other parties prior to the mediation taking place.

 The parties then convene at an agreed venue, with the Mediator, to attempt to resolve the dispute. Whilst the majority of mediations are conducted in person, some mediations are conducted remotely by video conference. This can be helpful, particularly in an international setting, to avoid the inconvenience and costs of travel to a venue. Whilst there are many examples of successful remote mediations, our own experience is that, “in-person” mediations work better and we prefer them wherever this is possible.

 At a mediation, it is common (but not mandatory) that there is an open session with all parties and the Mediator.  At this session, each side gets an opportunity both to meet the other party (which in some cases may be the first time this has occurred) and to give a presentation of their case. Depending upon the nature of the dispute this can be a very useful process.  It does give the parties an opportunity to express their feelings and concerns and can often act as a good substitute for the “day in Court”.  In other cases this may not be necessary and either the opening statements can be dispensed with altogether or can be very short.

 After the opening meeting, it is usual for the parties to go off to separate rooms and for the Mediator to meet with each of them separately to hear their case and to try to establish what they are really hoping to achieve from the mediation. If the mediation is conducted remotely, the mediator will have set up private “rooms” for each party.

 Thereafter the Mediator moves from each party to the other conveying messages, testing the reality of the position adopted by each party and seeking to encourage offers of settlement.

 Sometimes, during the course of the mediation, the Mediator will ask the parties or some members of their team to meet to discuss particular issues with the opponent.

 The Mediator’s role is to try to help the parties find a solution which meets all of their needs and upon which they can agree.

 If an agreement can be reached then this is embodied into a written Settlement Agreement which is signed by the parties.

 It is only then that the dispute is concluded.

Q7.      Can the Mediator decide the dispute?

 The Mediator’s role is not that of a Judge or other dispute resolver.  He or she is simply there to facilitate an agreement not to provide any rulings or decisions.         

 In some cases, where the parties have been unable to reach agreement, the Mediator may offer to give his or her view either on the likely outcome of some of the issues or the dispute as a whole or as to what might be a reasonable settlement for the parties to consider.  The Mediator should only do this with the consent of all the parties and even then the Mediator’s view carries no formal weight (unless unusually the parties agree to be bound by them).

Q8.      Enforcing a Mediation Settlement?

Within England and Wales, if a Settlement Agreement is reached, it will usually become part of an agreed Court Order which the Court can then make and this can be enforced accordingly. If there are no proceedings involved then the Settlement Agreement will be a Contract which can be sued upon in the usual way.

 In the International context, the UK government became signatories to the Singapore Convention on Mediation in May 2023. At that time some 56 countries were signatories and the number is expected to grow.

 The Convention aims to support mediation and make cross-border enforcement of mediated settlements much easier.

 Q9.      Is the process confidential?

 Yes while the parties may inform the Court that a mediation has or has not taken place they are not allowed to reveal the detail of anything said or done during the mediation and everything that takes place is covered by confidentiality and privilege.

 Additionally, when the Mediator meets with the parties individually, anything a party tells the Mediator is entirely confidential and the Mediator may not reveal this to any other party without prior agreement.

 This allows parties to be frank in their private discussions with the Mediator and to reveal their true aims and any concerns to the Mediator.  This is an essential part of the process as understanding each party’s objectives and concerns enables a skilled Mediator to assist the parties in finding common ground for a settlement.

 It is unclear at this stage, whether there will be any change in the position particularly in respect of compulsory mediation, for example, permitting the mediator to inform the Court if a party fails to participate or does not do so in good faith.

 Q10.    What are the benefits of Mediation?

 Mediation has numerous benefits. Firstly, if the parties are unable to resolve their dispute the costs both financially and in their own time in dealing with contested litigation is likely to be substantial. This is particularly the case as in England and Wales it is usual for the losing party to have to pay most of the successful party’s costs as well as its own. Further, even when a party has, what seems to be a strong case, there are always risks in litigation and it is very rare that the outcome can be guaranteed in advance. 

 Also, mediation allows parties to resolve their dispute consensually.  This makes it more likely that they will be able to work together in the future if they wish to do so.

Mediation also allows for a much wider range of results that the win or lose which is generally the outcome of a trial.  For example a party might agree to accept a lesser sum than it believes it is entitled to for work done in exchange for being offered a future contract.

Q11.    What is the cost of Mediation?

 This varies depending upon the number of parties, the identity of the Mediator and how long a mediation takes.

 As a rough guide, for a standard mediation in a commercial dispute between two parties lasting one day, it would be reasonable to budget for costs of around £3,000 per side for the Mediator and the room hire.  Additionally, each party will have costs of their legal team and other professionals for preparing for and attending a mediation.

 Q12.    Who should attend a Mediation?

 It is essential that each side has a representative present who has full authority to enter into a binding settlement on the day.

 Additionally each party would usually be accompanied by it’s Solicitor.  Depending on the nature of the dispute, other professionals may also be of assistance (for example in a dispute over a final account on a building project it may be helpful to have the Quantity Surveyors present). 

 Generally, although not always, in our experience the less persons who are present for each party the easier it is to progress to a resolution.

Q13.    When should Mediation take place?

 This is a difficult question. Theoretically the earlier the parties mediate the better as this will save most time and money that would otherwise be spent on the dispute and in many cases the costs that are being incurred often create the biggest obstacle to resolution.

 On the other hand, if the parties attempt mediation too early, settlement may be difficult particularly if the parties by that stage do not fully understand the other side’s case and/or have not seen the documents or evidence to back it up.

 In addition, often at the early stage in a dispute, parties are not in the right frame of mind to reach a settlement.  Rightly or wrongly, a party may be angry about the conduct of the other party, or just convinced that it is right and it may need time for tempers to cool and time to pass before there is a real prospect of a settlement.

 We have seen successful mediations take place at a very early stage, even before proceedings have been drafted. Equally we have settled cases at mediation at a very late stage, some times as late as only a few days before the Trial.

 On balance we would advise that mediation probably works best if it takes place reasonably early in the dispute but after each side has had time to understand and consider both its own case and that of the other side.

Conclusion

At Colman Coyle we have participated in a very large number of mediations varying from small disputes for private individuals to large mediations involving multiple parties and multiple Mediators where hundreds of millions of pounds are at stake.

Whilst not every mediation we have been involved in has been successful, the vast majority have resulted in either an immediate settlement or have contributed to a settlement taking place a little later in the proceedings.

In our experience, there are very few, if any, disputes that cannot be resolved through mediation and we would always recommend that parties give serious consideration to mediation as a means of resolving disputes.

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Howard Colman and Oksana Howard meet with international colleagues in London

Howard Colman and Oksana Howard meet with international colleagues in London

It has been a busy week at Colman Coyle. Oksana and Howard are pleased to have been able to meet with several of our international colleagues who joined us on their visits to London.

On Monday we met with Daniel Fleming and Linda Wong from New Jersey.

On Tuesday we met with Bob Freitas from California and on Wednesday we met with Lillo Boccadutri from Italy.

It is always a pleasure to meet with our international friends and colleagues and a great opportunity to catch up on what we are all doing both socially and professionally.

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Oksana and Howard with Daniel Fleming and Linda Wong

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Oksana and Howard with Bob Freitas

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Oksana and Howard with Lillo Boccadutri

Howard Colman attends IR Global ‘On the Road’ conference in Bangkok

Howard Colman attends IR Global ‘On the Road’ conference in Bangkok

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Howard Colman, a Founding Partner of Colman Coyle, and IR Global Member of the Year 2022, has recently returned from a productive and successful IR Global conference in Bangkok.

Howard is the exclusive IR member for Commercial Litigation & Commercial Arbitration in England and a long standing member of the IR Dispute Resolution Committee.

This was the first IR Global conference in Asia for four years following the pandemic and provided a good opportunity to meet with professionals from around the world but particularly Asia and to learn about different cultural approaches to business and legal issues.

New business contacts made at the conference will add to the existing Colman Coyle portfolio of international network of professionals from around the world, which in turn will strengthen our global outreach and ability to advise clients on matters concerning other jurisdictions.

Howard is looking forward to attending the next IR Global conference in San Diego and will be joined by Oksana Howard, the exclusive IR Global member for Capital Markets in England and a member of M&A Committee at IR.

Please see below a selection of photos from Bangkok:

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Q&A: Five minutes with David Bowers

Q&A: Five minutes with David Bowers

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David qualified as a solicitor in 2015 and joined Colman Coyle as an Associate Solicitor in 2022. We sit down with him to hear his insight and ask a series of questions on his career to date.

Tell us about your journey to becoming an Associate Solicitor at Colman Coyle

My journey was anything but traditional. After ‘A levels,’ I worked full time for a year, before going to study law at university. As part of this degree, I took the opportunity to study abroad at one of the oldest universities in Europe.

This meant that I graduated in 2009, just when the financial crash meant that jobs, and in particular training contracts were scarce. I was luckily able to secure a paralegal role in a high street firm, before switching to (at the time) one of the biggest non-city firms in the country.

With jobs and training contracts still scarce, I decided to study the legal practice course on a weekend basis. This meant two years spending every other weekend in Guildford, on top of my full-time paralegal role. I was able to secure a training contract in a large regional firm, qualifying in 2015 as a litigation solicitor. I stayed at the same firm and obtained a promotion to associate a few years later.

With an increasing focus on property litigation from day one, since 2019, I have focused solely on property litigation.

In 2022, I joined the leading property litigation team at Colman Coyle.

What does a typical working day include for you?

One of the most interesting aspects of property litigation is that there is no such thing as a typical day. Property litigation includes a spectrum of issues. All of which require different considerations and different approaches.

Each client is unique and building a relationship with clients is key. For this reason, much of the day is spent communicating with clients. I always prefer to speak over the phone if possible.

Alternative dispute resolution can often be used to secure the most advantageous and cost-effective resolution of the dispute.  Quite often I am involved in different methods to resolve a dispute.

Property litigation is focused on meeting deadlines. The court sets the timetable towards trial. The timetable will commonly include exchanging witness statements or expert reports.  Each step usually requires analysing documents, liaising with various parties and drafting court documents.

What is the most important lesson you have learned in your working life?

Working as a solicitor is about gaining knowledge, experience, constantly learning new skills and improving old skills. This never stops and continues throughout a legal career. I take a critical approach, reflecting at every opportunity and considering what I have learnt, how can I adapt and change in future.

A critical approach ensures that I maintain up to date skills and knowledge. This allows me continuously to achieve the ultimate objective for a property litigation solicitor, to understand the client’s objective and achieve the most advantageous result possible.

What do you do to relax?

I like to be active and enjoy the outdoors. On a Saturday morning I can usually be found at my local parkrun. On a Sunday afternoon, I enjoy hiking or cycling, usually through the Kent countryside.

What advice would you give to any aspiring solicitors?

A career in the legal profession can be challenging, initially to gain the experience required to enter the profession, and then after qualification with different demands. However, it is overcoming these challenges that makes working as a solicitor so interesting.

There will always be setbacks. Try and see these as learning experiences and consider what you can learn from them.

Make as many connections as you can. Attend training events, open days, speak to as many solicitors as possible. After connecting, develop a professional relationship.  This allows you to build your own network.

What are the issues facing property litigation today?

2022 was another turbulent year for property litigation. 2023 looks to be just as turbulent.

The emergency legislation introduced during the covid pandemic has slowly come to an end. However, flexible hybrid working remains more widespread.

Inflation is running at a 40 year high, there are rising interest rates, and warnings of a recession.

The cost of occupying commercial premises is likely to be a significant overhead for most businesses. Therefore, tenants may start evaluating their property portfolios, to identify where savings can be made. This may see a rise in tenant’s exercising break clauses.

The commercial property market has already proven to be resilient and capable of change. Landlords may need to consider the type of properties within their portfolios. Will there be a rise in converting commercial buildings to residential purposes, or will the trend for flex space letting for commercial tenants gain more traction?

With a recession, rent arrears are likely to increase. Without government interference as seen in recent years, there is likely to be an increase in forfeiture claims.

What are does the future hold for property litigation?

Commercial

From the 1st of April 2023, the next stage of the Minimum Energy Efficient Standard (MEES) comes into effect. This means that subject to certain exceptions, landlords of commercial properties must not continue to let a property with an EPC rating below an E. By 2030, the bar for MEES will be raised to an EPC B rating.

Both commercial landlord and tenants will need to consider the EPC rating of their property and the terms of the lease. This will involve considering what improvements to the property are necessary to meet the raising MEES requirements, and a careful analysis of the terms of the lease to confirm who will fund these works.

It is likely that environmental issues will become a more frequent issue in dilapidations claims and 1954 Act renewals.

Residential

Leasehold reform continues to be on the government’s agenda. The process has already started, most recently the Leasehold Reform (Ground Rent) Act 2022, prohibited new ground rents.

More reforms are expected; however, the extent of these reforms is currently unknown.  The complete abolition of leasehold has been reported in several newspapers after Michael Gove vowed to “scrap the feudal leasehold system.” The reforms are perhaps unlikely to go this far.

Instead, reforms are likely to focus on reducing the cost of extending leases and making it easier for leaseholders to take over their buildings.

The cost-of-living crisis may result in greater political pressure to help renters. A Renters Reform Bill may be introduced in 2023. The proposals include ending no fault evictions. This may lead to landlords considering whether they wish to continue to rent properties out.

You can read more about David’s work and profile here. If you are interested in our property litigation services and would like a quote, please contact David on +44 (0)20 7354 3000 or david.bowers@colmancoyle.com

Howard Colman to attend 2023 IR Global ‘On the Road’ conference in Bangkok

Howard Colman to attend 2023 IR Global ‘On the Road’ conference in Bangkok

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Howard Colman is delighted to represent Colman Coyle at the IR Global ‘On the Road’ conference in Bangkok.

Following on from the highly successful annual conference in Barcelona, at which Howard Colman won IR Global Member of the Year, the ‘On the Road’ conference provides a great opportunity to network with the 150 delegates attending, many of whom we have met before and work closely together on cross referral work.

Howard is the exclusive IR member for Commercial Litigation & Commercial Arbitration in England and a long standing member of the IR Dispute Resolution Committee. Howard and Colman Coyle have made a substantial contribution to the development of the organisation since the firm joined the network at its inception in 2010.

Colman Coyle’s International Department works closely with the IR network in Asia, which has been particularly helpful for our clients for us to be able to introduce them to, and work with, lawyers in the region.

If you have any questions or would like to meet with Howard during the conference, please email howard.colman@colmancoyle.com.

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