Go to Top

Blog Archives

Tag Archives: contest a will

Will disputes: What are suspicious circumstances?

One of the grounds commonly used to contest a will is that the testator didn’t know or approve the contents of their will.  This is called “want of knowledge and approval”. The court will look at all of the ‘suspicious’ circumstances in connection with the disputed will when dealing with want of knowledge and approval allegations. Here are 7 things to look out for, which could be considered ‘suspicious’: The Will is homemade and no professional advice has been sought; The Will contains spelling mistakes and/or untrue statements and/or uses language which would not have been used or understood by the testator; The Will contains a radical change in dispositions made without a rational explanation and/or generally the dispositions cannot be rationally explained; The relationship of the beneficiary to the testator was not close; The witnesses to the Will were not sufficiently independent; There is evidence of the beneficiary having …Read More

Will disputes: Children of abusive father unsuccessfully challenge his will

This is a sad case involving the children of wealthy businessman Alfred Stewart, who died in 2008. His children, Garry, Calum, Linden and Leonie, claimed Mr Stewart was an abusive sexual predator.  In 2005 he made a will that left his £6.7 million estate to charity, completely excluding his four children. The children raised an action at the Court of Session in Edinburgh to set aside their father’s 2005 will (and later amendments to it) on the basis that he was paranoid and delusional when he made his will. The court heard evidence that Mr Stewart was verbally and physically abusive to his children and his first wife, Lynne Buchan.  There was also evidence that he propositioned other women and sexually abused a child from about the age of four. Psychiatrists also told the court that Mr Stewart had a paranoid personality disorder. The judge, Lord Brailsford, said, “He seems to have been sexually …Read More

Will disputes: Dispute over Daventry man’s estate

A local case was in the High Court last month when Paul Tociapski claimed his brother, Boris, had put pressure on their father, Igor Tociapski, to transfer his Weedon property to him in February 2010.  Paul also claimed that their father’s 2009 will was invalid on the grounds of testamentary capacity and lack of knowledge and approval. Judge Stuart Isaacs QC decided that there was no sufficient evidence to satisfy him that the late Mr Tociapski had made the transfer of his £350,000 home to Boris with full, free and informed thought. He therefore set the transfer aside for reasons of undue influence. The judge also considered the validity of Igor Tociapski’s 2009 which left everything to Boris.  The judge accepted that there were suspicious circumstances surrounding the will ; namely that there appeared to be no rational reason for Paul to have been cut out of his father’s will, …Read More

Will disputes: Court decides Will that cut family out is invalid.

The family of  Iris Jolly have been battling in the High Court to prevent her estate passing to her elderly friends. Mrs Jolly made a will in August 2010, less than two months before she died at the age of 80, which left an estate worth £500,000 to her  “dear friends” Richard and Pamela Phythian, both in their 70s. Mrs Jolly’s family claimed the will was not validly executed and she lacked the mental capacity to make the will at the time it was written. The court heard that Mrs Jolly had suffered severe mental decline after the deaths of her husband Alf and her twin brother.   Mrs Jolly’s niece Lynda Turner said her aunt was a  lonely, housebound, childless widow who was open to suggestion.  She believed Mr Phythian persuaded Mrs Jolly to make the will. Mr Phythian admitted drawing up the will for Mrs Jolly.  He was appointed sole executorin the will and he had also witnessed …Read More

Wills GUEST BLOG: When is a testamentary capacity report needed?

My Practice receives a lot of enquiries about Mental Capacity Reports but less instructions.  Clients do not seem to understand their value and perhaps the same is true for some solicitors.  Yet on a regular basis, my elderly psychiatrist colleagues charge many thousands of pounds to sift through the medical records of deceased people, whose wills are being contested, with no guarantee of any conclusion being reachable. In contrast an assessment done specifically to address the testamentary capacity of someone about to make a will is a relatively easy exercise and a brief report from a psychiatrist can be used after death as much clearer evidence, especially if it addresses the specific issues which are likely to be controversial. As with any instruction the psychiatrist is looking for the questions the solicitor wants answered, but also what, if any, controversial issue there are in the case.  These could relate to …Read More