Expert Comments On High Court Case

A High Court dispute over an estate worth over £500,000 demonstrates the many issues that can arise when families contest the Wills of their loved ones.

Reports have revealed that 61-year-old Olga Smith is contesting the Will of her husband, Thomas, who died in 2009.

In 2005, he changed a Will originally drafted in 1992 to prevent her from gaining any inheritance, but his wife has since claimed that he made the decision in a period of time when a brain tumour made his behaviour increasingly erratic.

However, Mr Smith’s family have claimed he was fully aware of his actions and have suggested they have evidence that he felt their marriage was essentially over by 2003.

While the case is to be heard in full at a later date, Mrs Smith has been denied an interim payment to meet legal costs and other expenses.

Commenting on the reports, Adam Draper, an associate solicitor in Irwin Mitchell’s Will, Trust and Estate Disputes team, said this case highlighted a range of issues that people could bear in mind when considering their own claim over an inheritance.

He explained: “Based upon the press reports of this case, it appears that Mrs Smith has proceeded with her claim by alleging that her husband lacked testamentary capacity – the capacity to make a Will – when he chose to revise his Will with a view to cutting her out, citing behavioural problems as a result of a brain tumour as evidence of this.

“In our view, as they were still married at the date of death, she may have also had an option to bring a claim for reasonable financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975.  When considering a claim by a spouse, the Courts ordinarily apply the ‘deemed divorce’ test as a starting point for assessment of the financial provision received from the estate.

“This generally looks at how much a spouse might have been expected to receive if the couple had divorced.”

Adam added that another issue which this case hints at is the costs which can be incurred during a legal battle over a Will dispute.

He explained: “An important consequence of legal action in relation to a Will dispute is the cost of commencing such an action.

“Families should always bear in mind the impact that such a dispute can have, often leading many into a time-consuming, expensive and emotionally draining legal battle.

“This is why we would always urge people who are writing Wills to seek expert advice and ensure that the terms of such documents are clear and concise. It is important that people also discuss the reasons behind the decisions made with loved ones, as this could play a vital role in preventing them from having to go through the process of a court battle.”

If you are involved in a will dispute or need further information about contesting a will, please visit our Will, Trust & Estate Disputes section