Deathbed will is upheld on appeal.
31st October 2016 by Rob Kelly
A challenge to the deathbed will of a father by the daughters he cut out of his £4m estate just hours before his death in hospital failed in Fitzgerald and ors v Henerty and ors [2016] EWCA Civ 701. In giving instructions before signing his first and only will, the man communicated with his solicitor by nodding his head and speaking through an oxygen mask. His daughters challenged the will on the basis that their father’s condition raised doubts as to whether he knew and approved the contents of the will.
The validity of the will was, however, upheld by a judge and, in dismissing the daughters’ appeal against that decision, a unanimous Court of Appeal noted that the father had previously stated more than once that, in his view, his daughters already had enough money. He had taken independent legal advice and his solicitor had read the document through to him, and twice asked him if he was sure before he signed it. The attack on the father’s decision to disinherit his daughters was described by one of the judge’s as “barely arguable”.
Further, the court held that a clause in the will by which the father granted to the company he founded an option to buy back his shares at their probate value, did not give rise to suspicion. He had understandably wished that the company would continue to thrive after his death and wanted to avoid financial turmoil within his family.
The will was defended by the father’s partner and his two sisters, who were awarded substantial legal costs against the widow and daughters following the dismissal of the appeal.
If you would like further information please contact Rob Kelly.
This article provides information and comments on legal issues and developments of interest. The contents of this article do not constitute legal advice, is not a comprehensive treatment of the subject matter covered, and should not be relied on as such. Legal advice should be sought about your specific circumstances before taking any action with respect to the matters discussed.
Rob Kelly
Senior Associate Solicitor — Dispute Resolution
Direct dial: 01202 377871
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Rob practices in two main, complimentary areas of work – contentious wills, probate and trust disputes, and property disputes.
Contentious wills, probate and trusts
More than half of Rob’s time is spent dealing with the contentious aspects of wills, probate and trusts, an area in which he has practiced continuously for over 20 years. He advises and acts in disputes relating to wills and inheritance, trusts, the duties of trustees and personal representatives, and the administration of estate.
Rob’s practice embraces:
- Personal representative and trustee disputes (including personal representative and trustee disagreements, removals / substitutions and alleged misconduct)
- Disappointed beneficiary claims
- Will disputes (where the validity of a will is challenged on the grounds of undue influence, lack of testamentary capacity, lack of knowledge and approval of the contents of a will, and fraudulent calumny)
- Financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975
- Proprietary estoppel claims
- Disputes about the proper construction, and rectification, of wills
- Caveats
- Professional liability claims arising from the preparation of wills and trusts and the administration of estates
He has mediated (either as appointed mediator or as a representative) dozens of disputes involving contentious wills and probate issues.
Property disputes
The other side of Rob’s practice is contentious property work. This embraces:
- Residential and commercial landlord and tenant disputes
- Disrepairs
- Repairing covenants
- Possession claims
- Lease termination and lease forfeiture
- Dilapidations
- Service charge disputes
- Interpretation and enforcement of leasehold covenants
Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.
Rob is a Solicitor. He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme in June 2006 and is a member of the Civil Mediation Council.
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