Possible remedies for the disinherited
Posted on 12th October 2017
The case of a son, who is suing his mother and sisters after he was cut out of his dementia suffering father’s will is widely reported in the press this week. The brief facts of the case are that the 60 year old son, Sam James, had worked on the family farm all his life and claimed that he did this on the promise that he would inherit it. He thought that his father had signed a will in 2004 leaving the farm to him, but he claims that his mother intercepted this will and that she pressurised his father to sign a new will (in 2012) while he was suffering from dementia, that excluded Sam entirely. The ruling will be delivered at a later date.
This case raises two interesting areas of law:
- Grounds for contesting a will; and
- The doctrine of proprietary estoppel.
The most common grounds for contesting a will are:
- Want of due execution – that the will was not executed correctly i.e. by signing it in the presence of two witnesses who are both present at the same time and who then sign in the presence of the testator (the person whose will it is).
- Capacity – when a person signs their will, they must understand what they are doing, the extent of the property they are giving away and the claims which they should consider and for the last of these, there must be no disorder of the mind which would ‘poison his affections, pervert his sense of right or prevent the exercise of his natural faculties, and no insane delusion must influence his will in disposing of his property’. This test for capacity was established in an 1870 case and although it has been developed further by later cases, this test for capacity holds good today.
- Undue influence – where it is alleged that the person signing the will only did so because they were coerced into doing so or because someone deliberately and falsely poisoned their mind against a potential beneficiary.
- Fraud – when someone makes false claims to the testator about the character of a potential beneficiary in an attempt to ensure they don’t benefit.
- Want of knowledge and approval – that when the testator signed their will, they did not know what was in it and did not approve of it. Generally if a will appears valid on the face of it, then in the absence of any contrary evidence, it is accepted as such, but in circumstances which are suspicious, confirmation is required. This may be when someone prepares a will for the testator where they are the main beneficiary or when say, the testator is blind.
- Sham – that the will was not intended to be one i.e. that although it looks like a will, the person signing it did not intend that it should be one.
In the James case, it seems likely that the son would have been relying on the grounds of capacity – or rather his father’s lack of capacity when signing the will and also undue influence i.e. that his father was pressurised into signing the will which excluded him.
The other issue that might have been considered in this case was that Sam James claimed he spent his life working on his father’s farm on the promise that he would inherit it. He might have considered bringing a claim for proprietary estoppel which is mainly applicable in respect of land and operates to change rights over property. There must be three main elements:
- A promise or other encouragement must have been made by X to Y;
- Y must have relied on that expectation; and
- There must be some detriment to Y in consequence of them reasonably relying on that promise.
In the James case, if the son was able to show that his father had promised the farm to him if he worked there for life, possibly for free, then he might argue that he had relied on that promise to his detriment. If he was able to argue this successfully, the court might consider if it was appropriate to award him the farm – or something else from the estate of similar value.
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