A Mother Knows Her Sons

By John Wiblin, Partner and Head of Dispute Resolution

More and more children are challenging their parents’ wills

High property prices have led to an increase in court claims over deceased estates by disappointed family members who have not inherited their parent’s property or a share in it. Because it is usually the largest estate asset, when a parent of more than one child chooses to give the family home to one of their children, it is most unlikely that the estate will be divided equally between siblings. This can trigger suspicion that the outcome was manipulated by the person who benefited disproportionately and a legal challenge may be made. A challenge of that kind can be made whether the property was transferred before or after the testator’s death.

‘Man beats brother’s bid for mother’s £400k Hoddesdon home’

A recent case of ours that attracted the attention of the national press (and was published with the headline above in the Daily Mail) was unusual only in that our client’s late mother had so accurately predicted what would happen after her death. She had instructed a firm of solicitors in Hoddesdon to prepare her will. The solicitor who assisted her there would later testify in court that her client had been a ‘formidable’ lady who had enquired at some length about what steps could be taken to prevent her will being challenged after her death. She had not been very pleased to be told that although some steps could be taken, nothing could guarantee that there would not be a challenge. After her death, her older son challenged the transfer of her home during her lifetime to our client, his younger brother.   The allegation was that there had been undue influence.

At court, the judge dismissed all the claims against our client. Although the judge accepted that the older son had felt ‘genuinely aggrieved’ by his mother’s decision to disinherit him, he concluded that she had thought her older son was ‘undeserving’. The judge described her as a strong-willed woman who ‘knew her own mind’ and that her younger son had given up his career to become her full-time carer.

Persuasion is not undue influence

There are several ways in which a disinherited child might go about challenging a parent’s will. An allegation of undue influence on the testator in making out their will, or disposing of their assets before their death, is one of the most common.

But the concept of undue influence is often misunderstood. Disappointed children have complained that the sibling who inherited the bulk of the parent’s estate had charmed their way in to the heart of the parent in their later years or that because of geographical proximity or other reasons a sibling had greater opportunity to form a closer bond to their parent.    But testators are entitled to be unfair or biased. They can leave their estate to whomever they please.

Subject to the provisions of the Inheritance Act 1975, which allows the court to interfere with the distribution of an estate to provide for certain classes of persons if they had relied on the deceased for maintenance before their death, the courts will not go behind the testator’s wishes. A claim of undue influence is a claim that the will or other acts disposing of the estate does not reflect the person’s wishes but rather the wishes of someone else. The courts speak of coercion such that the deceased’s discretion and judgement is overborne. Coercion is pressure that overpowers the testator’s own wishes without changing their mind. It is distinct then from persuasion. Where persuasion genuinely changes a testator’s mind, any resulting act will reflect their true intentions and will not have been obtained by undue influence. It is likely then that the testator’s acts can only be challenged if fraud can be shown.

Longmores Solicitors have been based in Hertford, Hertfordshire for over 200 years and have been consistently ranked by the legal directories as leaders in the fields of wills, trusts and disputes.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.