Jon Robins reports on the recent high-profile will disputes that have put probate law in the headlines




The case had all the ingredients of an Agatha Christie plot, reflects Tim Clark, a partner at Canterbury law firm Robinsons. He represented Stephen Supple, who last month successfully persuaded the court that his father’s will was a fake. One suspects the esteemed crime writer might perhaps have come up with more plausible details for the crime itself.



Apparently, so blatant a forgery was the home-made will that Mr Supple, a barrister, laughed out loud at its amateur execution. ‘I just couldn’t believe my eyes when I saw it,’ he told the Daily Mail. ‘It was so obviously a fake.’ Mr Supple was probably not laughing when he read the contents, however. The disputed document purported to leave the estate of farmer Leonard Supple, reckoned to be worth £18 million and including a 60-acre farm in Kent, to his illegitimate daughter Lynda Milne. He left precisely nothing to his partner of more than 50 years and a paltry £100 a month to Stephen as (in the words of the forger) ‘a gesture of goodwill’.



The judge concluded that the document was not the genuine article because Mr Supple senior’s signatures did not match previous examples. ‘My father had signed an unrelated legal document two weeks before his death, so I knew the signature had been forged,’ commented his son. ‘There wasn’t a shred of doubt in my mind. I was stunned by the audacity of it. It was an insult.’



‘All you need for an effective will is compliance with the terms of a rather antiquated piece of legislation, the Wills Act 1837,’ explains Mr Clark. ‘In very simple terms, barring a couple of exceptions, all that’s required is that it has to be in writing, signed by a testator so that it appears he intended his signature to give effect to the document, and for it to be signed in the presence of two or more persons.’



The relative simplicity belies an endless potential for argument between warring beneficiaries. ‘It’s somewhat odd that I could sit down today with a blank piece of paper and £18 million of assets, produce a legal document to deal with those assets and then get two strangers in off the street to witness that,’ says Mr Clark. ‘Especially when you compare that to the formalities needed for entering into a simple tenancy agreement.’



The solicitor quotes from the judgment of Lord Justice Peter Gibson in the landmark Court of Appeal ruling Fuller v Strum [2001] EWCA Civ 1879: ‘The doctrine of “the righteousness of the transaction”, whereby the law places a burden on the propounder of the will, in circumstances where the suspicion of the court is aroused, to prove affirmatively that the deceased knew and approved of the will which he was executing, is a salutary one which enables the court in an appropriate case properly to hold that the burden has not been discharged.’



Solicitors have also found themselves personally drawn into the web of disputed wills. The family of millionaire north London solicitor Richard Sherrington has kept the newspapers happy for some time in an acrimonious and high-profile dispute about his will, while a will drawn up for his mother by another north London solicitor, Morley Franks, was recently successfully challenged by his nephew, the judge finding that Mr Franks had failed to dispel the suspicion as to whether his mother knew and approved of the contents of the will (see [2007] Gazette, 15 February, 24).



The latter case is a cautionary tale for solicitors asked to draw up wills for members of their family where they also personally benefit – a situation in which practitioners, Solicitors Regulation Authority guidance says, should exercise ‘extreme caution’ given the risk of conflict.



The problem with disputed wills is the absence of the protagonist. As Peter Hewitt, a partner in the contentious trusts and succession team at City firm Withers, puts it: ‘What’s most interesting about this area of work is that the key witness is dead. That is what marks contentious probate out.’



The distinction between normal wills and probate work and contentious matters is reflected within the profession. ‘It’s important that when the case becomes litigious, it is dealt with by a litigator because, within the law, we’re pretty much different animals – although the litigator and private client lawyer have to work hand-in-hand,’ comments Jan Wright, an executive member of the Law Society’s probate section and partner at Cumbrian firm Cartmell Shepherd.



So specialist is this discrete area of legal practice that, ten years ago, the Association of Contentious Trust and Probate Specialists came into existence. It was set up by Henry Frydenson, a partner at international firm Baker & McKenzie. ‘Whereas a lot of things are done well by your generalist practitioner,’ says Mr Frydenson, who chairs the group, ‘we have felt for quite a time that contentious trusts and contentious probate represents a speciality.’



Back in 1997, the lawyer approached 15 firms to back him in setting up the group. ‘We now have in excess of 300 members and they span the UK, Jersey, Guernsey, Hong Kong and Canada, and we’re slowly getting very international,’ he says.



Over the last decade, the contentious trust department at Withers has grown from one partner and two assistants to four partners, six assistants and two trainees. What is driving this? Mr Hewitt points out that the average house price is now around £177,000. ‘Families for whom making wills might never have been an issue are now leaving estates that are sizeable and worth fighting about,’ he explains.



The solicitor breaks down the work-load of his department as follows: challenges to the validity of a will and claims under the Inheritance (Provision for Family and Dependents) Act 1975, which he reckons are the two main areas; issues of construction, particularly home-made wills; and then proprietary estoppel and constructive claims cases.



Ms Wright expects to come across half a dozen contested will cases every year. She also agrees the number is growing. Why? ‘Estates are getting bigger and more complex and people are becoming increasingly greedy,’ she replies. ‘So you are getting nieces persuading their aunts to change their wills, next-door neighbours taking advantage of the little old man who doesn’t have any family, and then, of course, you have home-made wills causing all sorts of problems.’



It is little surprise to Paul Elmhirst, recently retired solicitor and author of the Which? Wills and Probate guide, that disputed wills prove such a fraught and fertile area of legal activity. The public has a predisposition to confusing the most straightforward legal directions, he finds, having ‘tried for years’ to find a foolproof formula for writing to people with a will that he wants them to sign in the presence of witnesses.



‘So you write your letter saying: “Can you sign it where I have marked in pencil” and the will promptly comes back signed in pencil; or you say: “Can you sign where I have marked your initials” and they carefully outline your initials. Nothing surprises me anymore.’



So how do lawyers establish the validity of a contested will? ‘You have to first track down the person who drafted it,’ explains Mr Hewitt. ‘If it is with a solicitors’ firm, that firm now has an obligation imposed by the Law Society so that even if the person who drafted it isn’t available, then the firm has to provide copies of their will file.’ The deceased’s medical records can then be looked at, their neighbours, family friends, GP, and carers interviewed. ‘You have to have an open mind,’ says Mr Hewitt. ‘It is very easy for somebody who is challenging the will to hear what they want to hear.’



Tracy Harris, a litigation partner at the northern home counties firm Taylor Walton, acted for Lady Caroline Cox-Johnson, who last month reached agreement with her late multi-millionaire banker husband’s sons from his first marriage. After six days in court, her three sons dropped their claim that their father, Richard, who suffered from Parkinson’s disease, lacked testamentary capacity when he made his last will in February 2005, a month before his death at the age of 70, to increase Lady Caroline’s share by £2.6 million. ‘In these sorts of cases, what the judges are trying to do is understand what a person was like and get a view as to their capacity without any direct evidence,’ Ms Harris explains.



‘The problem is often a question of whether the testator was barmy or merely eccentric,’ says Mr Elmhirst. ‘If they do something that is odd, can it be challenged? After all, it is their own property and they can do whatever they like with it.’ In the Cox-Johnson case, Ms Harris’s client produced 30 statements from people, some of whom the deceased had known for 50 years. But also she says in this case, unusually, there was direct evidence, as one meeting was videotaped. ‘The deceased had Parkinson’s disease, which severely affected his speech, but when you hear what he was saying, there were certain aspects that he was very clear about,’ she says.



How often do lawyers suspect that foul play has been involved? You often get ‘a sense in your nose’, Mr Elmhirst says, adding that at least twice a year he comes across a case where he believes something odd has happened. Mr Hewitt suspects it is quite common too. ‘I would say that in one in 20 cases you know something improper has occurred,’ he reckons.



By analogy, the solicitor points to the Court of Protection, which estimates fraud on a similar scale concerning enduring powers of attorney. ‘You never get the evidence as clear as, say, the gun pointing at Aunty Dot’s head,’ he says. ‘That is why with wills you don’t have to prove “undue influence”. You can challenge them on the basis of want of knowledge or approval.’



‘Undue influence is a species of fraud and effectively amounts to somebody really coercing somebody else to do what they want,’ explains Tracy Harris. ‘I have come across people carelessly alleging it quite a lot but rarely do I come across people actually proving it in court because it is so difficult.’



Jon Robins is a freelance journalist