A man who was disinherited from his mother's Will is bringing a claim against solicitors who drafted an Estate Protection Trust in 2003 for his mother designed to ensure that he inherited her property, or the proceeds of sale, after she died. However, she entered into a civil partnership with a woman 37 years younger than her in 2007 and sold her property in 2008 without her son's knowledge. When she died in 2013, the majority of her estate passed to her civil partner.
Associate – Estate & Trust Disputes Specialist
The trustees in the Trust were the deceased, her son and her son's wife. It is not clear why or how the property was able to be sold without the trustees' knowledge, but it appears as though the trust was not necessarily directly attached to the property and there was no restriction on the title to prevent a sale. The son, through his solicitors, will undoubtedly have requested the solicitor’s files and these will be part of the evidence in the claim.
The solicitors say that they were not instructed to advise on the trust; neither were they acting in any capacity for the son and his wife. Generally speaking when drafting a trust of this sort, the solicitors acting would advise all parties to take independent legal advice on their position. I would also expect them to advise the client on the advantages and disadvantages; but again it is impossible to comment on this without the facts and we will not know the outcome unless or until the case is concluded and reported.
Trusts are difficult and complex and each party should seriously consider taking independent advice to be sure to minimise any risk to them in the future of the trust not doing what it was considered it would do initially.
Although the Civil Partner is not a party to this claim, it has been reported that she also inherited a significant amount from a previous partner; again a lady considerably older than her who sold her property and moved in with her, leaving her a substantial sum when she died. Although a claim was brought by the deceased's godson at that time it was settled out of court and the settlement terms are confidential.
Although, because the claim was settled on confidential terms, there is no actual suggestion or evidence that the partner has done anything wrong on either occasion, it is a fairly common theme that elderly and vulnerable people can be taken advantage of and coerced or influenced into disinheriting their family in favour of someone who comes along and takes care of them and puts themselves in a position of trust. Whilst is it fairly common and perfectly legal for someone to leave their estate to someone they love and trust and who has come along at a time in their life when they perhaps need someone to take care of them, there are undoubtedly people who see this as an opportunity to inherit from a vulnerable person and it is also understandable for a close family member to feel aggrieved if the estate they believe was intended for them has been stripped away from them.
There are various avenues which need to be explored if you feel that an elderly or vulnerable family member has been befriended by someone whose intentions are not what they are said to be.
As much as possible should be done while they are alive to ensue that they are not pressured into making a new Will and that no undue influence is used. However, it is often the case that these things do not come to light until after the death. At that stage, if there is any suspicion of coercion or undue influence, files from the Will writers can be requested and considered, together with any property transaction files, to establish what the deceased's intentions were when making decisions about their Will or their property in their lifetime.
Medical records are also often helpful in establishing whether the deceased had the necessary capacity and knowledge and approval to make a Will and/or deal with property transactions and also as to whether there were any concerns about undue influence.
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