Gary Rycroft: Article from This Is MONEY

I am writing to you in the hope you can help me, and you are my last resort. My father has recently died and in 2006 a family friend (executor) typed a will for him, leaving his estate to a dogs’ home. The estate is only small, now £6,000. However, my father disinherited me and my brother (who was estranged). I continued to support and care for my father until he died in January. I sat beside his bed for four days and nights while he passed away. The hurt that I now feel at being left out of the will is immense. He makes no mention of his family in his will at all, no reasons why we should be excluded, and leaves his estate to a dogs home, with no reason why. The will is home made, but was witnessed by two other people. My father had suffered from mental illness problems since early 2002, and was later diagnosed with dementia in 2012. This hurt I feel is compounded by the fact that I have a chronic illness and am unable to work. I am also unfortunately a WASPI woman, who has no state pension and therefore I am in a poor financial state. Due to my illness, I am losing the energy to continue trying to get this unjust situation corrected. I have been to the Citizens Advice Bureau, who told me under a 1975 Act I had a case, but that I needed to consult a solicitor. I have contacted two solicitors who say their fees are £200 per hour, and are unhelpful. How does someone in my position try and claim when something is so unjust as this situation? It is appalling that I don’t seem to have any redress as I do not have enough funds to get legal advice. While the estate may be small, to someone sick and out of work it could make a huge difference. Plus, my brother seems to want half, so anything may be eaten up by solicitors’ costs, if I could afford to go that way. I wondered if there is anything a person in my situation could do to stand up for what clearly has been an unjust situation? Thank you for any help.

Gary Rycroft, partner with Joseph A. Jones & Co Solicitors, replies: I have every sympathy for your situation.

Matters such as this which arise after a person has died are extremely emotive and clearly have an impact upon the grieving process. If you are unhappy about the will left by a loved one there are two potential ways to challenge it. The first is to bring a claim that the will is not valid and the second is to accept that the will is valid but to bring a claim for financial provision.

Can you prove the will is invalid?

In this case, if you wish to explore scenarios which could lead to the will being proved to be invalid then you should focus on firstly whether it has been executed properly, and witnessed by two witnesses who were present at the same time as your father signed the will and then signed in the presence of each other. It is sometimes found with homemade wills that even though there are two witnesses, they were not there at the same time and so in that case the will is invalid. You should also explore the issue of your father’s capacity to make a will in 2006 on the basis that you mentioned he had mental health problems from 2002 onwards. The fact that your father was diagnosed with dementia in 2012 is probably not relevant to the validity, and also diagnosis of dementia does not necessarily prevent a person from making a will (it depends upon the severity of the illness).

The other issue to explore with regard to the validity of the will is whether or not the person who typed it up had any undue influence on your father in terms of its content. However, it should be noted that if you were successful in proving that the will is not valid then in that case your father’s estate would pass on the basis of him being intestate (not having left a valid will). If you and your brother are his closest blood relatives then the estate would be divided equally between the two of you. So you could do all of the work and your brother would end up gaining half of the estate.

Can you bring a claim for financial provision?

The other potential claim to explore is to accept that the will is valid but to bring a claim for financial provision for yourself. This would be done under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act that you mentioned in your question). In your own circumstances there are a number of factors which would be favourable to such a claim. First and foremost are your own personal circumstances in terms of your chronic illness and how that impacts upon your own ability to work and provide for yourself and also your own precarious financial circumstances. The care you provided your father at the end of his life is also relevant. In addition, I would recommend that you explore whether or not your father had any connection with the charity to which he has left his estate. If he didn’t have any connection to the charity or fondness for dogs then his gift to the dogs’ home could be seen as capricious and is therefore less likely to be respected by the court If you were successful in bringing a claim under the 1975 Act then the claim would be for yourself and not for anyone else and so your brother would not benefit from that.

Can you afford to get legal help?

You mentioned that you have contacted a couple of solicitors and of course they quite rightly mentioned to you their hourly rate. Solicitors are in business and have to charge for their services. Solicitors are regulated and insured and all of that has a cost. An issue here is the relative low value of the estate and so there does have to be a recognition that the costs of pursuing a claim may outweigh the benefits. Legal aid is rarely available nowadays and certainly not for cases of this kind. However, one way in which you could potentially underwrite the cost of bringing a legal claim is if you have legal expenses cover with your home insurance. In that case, your insurance company may underwrite the cost of you instructing a solicitor to bring a claim on your behalf.

What action can you take without a solicitor?

In any event, my approach to this case would be to contact the charity beneficiary and to set out details of your two potential claims as above, namely, your potential challenge to the validity of the will and your potential claim under the 1975 Act. Charities are in a difficult position when they are the beneficiaries of an estate where there is a challenge. This is because charities have a duty to their own beneficiaries to maximise any assets gifted to them. However, in this case, I would say that you have many factors in your favour and so if you write to the charity concerned you should point out to them that any dispute about the will would most likely end up with the assets in the estate being exhausted in pursuing a claim and so it would make sense for them to settle it. Given the value of the estate, I would aim to settle with the charity for you to be given an ex gratia payment of half the estate and for them to retain the other half. This settlement would be on your own behalf, so again your brother would not benefit. But that way, both you and the charity would receive something which is far better than it all going on legal fees.