Contentious Probate Overview: Mama can’t buy you love but will you leave me something in your will?

The tabloid newspapers were awash recently with the news that Elton John has been snubbed by his mother, Sheila Farebrother’s in her will. According to The Sun newspaper, Sir Elton John will only receive two ceramic urns together with some family photographs, in accordance with his late mother’s will. No provision was made in Ms Farebrother’s will for her grandchildren, namely Elton’s sons Zachary and Elijah. Instead, it is reported that Ms Farebrother by her will, divided her estate, worth an estimated £534,000 into two equal shares, with one share being paid absolutely to her former personal assistant Bob Halley. The remaining share is to be divided between those of Sir Elton’s half-brother Frederick Farebrother and Ms Farebrother’s friend Deborah Woodward.

According to The Sun Newspaper, Sir Elton was snubbed by his late mother in her will as a result of a falling out. The Sun reports that Elton and his mother disagreed as a result of the singer firing Mr Halley, whom he had worked with for three decades or so. It is alleged that Sir Elton encouraged his mother to also fire Mr Halley, but she refused, and allegedly stated that Mr Halley was like a son to her.  Apparently, this was the last straw in an already tense relationship between Elton and his late mother. Their feud was widely reported and reached a crescendo when Ms Farebrother famously hired an Elton John impersonator to appear at her 90th birthday party in place of the real singer.

However, after eight years of bad blood, mother and son set aside their differences and reconciled in 2016. Following Ms Farebrother’s passing in December, Sir Elton paid a moving tribute to her on social media and wrote: “So sad to say that my mother passed away this morning. I only saw her last Monday and I am in shock. Travel safe Mum. Thank-you for everything. I will miss you so much. Love, Elton”.

According to The Sun‘s sources, Ms Farebrother decided to amend her will a few weeks prior to her unfortunate death.  The Sun’s source commented that while Sir Elton was unlikely to be troubled as a result of losing his mother’s inheritance, given his own fortune and financial situation, being left out of his mother’s will to a large extent, may have caused him some pain as it meant that his late mother had not truly recovered from their fall out. There are of course various other explanations as to why Ms Fareborther decided not to leave her estate to Sir Elton. She may have considered for example that Sir Elton did not need to inherit from her estate and that receiving an inheritance from her estate would adversely affect his own estate planning and future possible inheritance tax liability.

There are of course valid reasons for the deliberate non-inclusion of a family member in a person’s will. For example, some people decide not to leave anything to a child if he or she is severely disabled, as receiving an inheritance of over £16,000 would have an adverse effect upon that child’s eligibility to receive means tested state benefits.

However, being left out of a relative’s will, for no apparent reason when that person may have originally thought that he or she had been included in the will, is naturally painful.

The private client department at Wendy Hopkins Family Law Practice has seen somewhat of a rise in contentious probate work during the last few years. We have experienced that people are now more inclined to litigate, if they feel disappointed as a result of a lack of an inheritance from a relative’s estate, or if they feel that they deserved to inherit more.

But what exactly is contentious probate and how does it differ from non-contentious work? Contentious probate is any legal dispute relating to the administration of a deceased person’s estate. The possible claims include disputes over the validity of a will, for example if someone claims that the deceased lacked the mental capacity to make a will, disputes in relation to the value of assets, the interpretation of a will, or concerns that an executor has failed to properly administer a person’s estate.  Conversely, non-contentious probate deals with the ordinary run of the mill work connected with the administration of a person’s estate, such as the drafting of the oath, obtaining the grant of probate, the drafting of estate accounts and dealing with the distribution of an estate. The private client department at Wendy Hopkins Family Law Practice deals with both contentious and non-contentious probate work.

In order to provide you with a flavour of the variety of cases that the department has dealt with over the last few years, the nature of the cases range from challenging a claim that the deceased did not intend to destroy his will and that a copy of his last will should be admitted to probate, thereby disinheriting some of his children who would inherit under the rules of intestacy, to claims that a deceased’s will was changed prior to his death as a result of undue influence from a relative.

Allegations of lack of capacity at the time that the deceased made his or her will are now common place, mainly as a result of an ageing population and the unfortunate rise of dementia and Alzheimer suffers.

We are also dealing with a number of claims that have been made to challenge a deceased’s estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975. A claim under this legalisation can be made if a family member feels that he or she has not been adequately provided for by the deceased in his will, or under the provisions of the intestacy rules, if the deceased passed away without making a will. The Act allows the Court to vary the disposition of the deceased’s estate to provide for certain family members or dependents. The legislation is regarded by some as being somewhat controversial as it can be seen to fly in the face of the concept of testamentary freedom, which is a founding feature of this country’s law with regard to will writing. The concept of one’s family has significantly altered over the years, with more and more people separating, re-marrying and starting a new family.  Quite often, the children of the first marriage may feel that they have not been adequately provided for in a parent’s will, if the bulk of the estate is left to the new spouse.

Conversely, more people now decide to co-habit and there is a common misconception that there is no need to prepare a will as everything will automatically be inherited by the surviving partner upon the death of the first partner. Sadly, this is not the case at all as a co-habitant or partner does not receive anything under the intestacy rules and will consequently miss out completely on receiving an inheritance. In that situation, the surviving partner has no alternative but to challenge the estate for reasonable financial provision pursuant to the Inheritance Act 1975.

Luckily, most of the department’s contentious probate cases settle outside of the court arena, either as a result of mediation between the parties, or a result of negotiation between their respective solicitors. Applications to the court are both costly and time consuming and can be highly emotive. Applying to the court, is always regarded as a last resort. Presently, only one of the department’s cases has resulted in an application to the Court.

Writing a will continues to be a sensible precaution against any challenges to a person’s estate. Whilst a will and perhaps a carefully worded letter of wishes will not always prevent a challenge from being made, it will serve as vital evidence of the testator’s wishes and feelings at the relevant time, when the will was prepared. Sometimes, it is also advisable a leave a token gift in a will, as a goodwill gesture to those who will not benefit from the bulk of the estate, in order to reduce any grounds to mount a possible challenge against the estate. In practice people are less inclined to a challenge an estate, if they have been left something in a will.

Writing of his mother’s funeral in January this year, Sir Elton John stated: “thank-you for bringing me into the world and for all that you have done for me”. It would therefore appear that the singer is at peace with his mother’s decision to largely exclude him from her will. He may indeed have been aware of her testamentary wishes, prior to her death and is content that her estate will be divided in accordance with her wishes.

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Wendy Hopkins Family Law Practice
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CF10 3BY

Published: 23/03/18