Fraud and Undue Influence a Will - Coursework Example

? (Nature of Work) SUMMARY OF ADVICE In brief, Mrs. Carol Nash may contest the will of her father, John Pendleton, d and stand to collect, along with her sibling, Louise Pendleton and their children, the estate of their father. This can be done by proving that the will of John Pendleton dated 1992 is valid and the one dated 2010 is not. The 2010 will may be contested for fraud, undue influence or by showing evidence that the testator has no mental capacity to make a will. Carol Nash may also move to invalidate both wills and simply allow the Law of Intestacy to take its course, since after all, she and her sister, along with their children will be the beneficiaries by virtue of the intestacy law, being the only known living family of John Pendleton. REPORT The Client' Objectives It is the objectives of Carol Nash and Louise Pendleton in the process, to contest the alleged 2010 last will and testament supposedly executed by their father, John Pendleton in favor of Charlotte and Trevor Michaels and have it declared invalid. Likewise, it is their aim to reinstate the validity of the initial will dated 1992 where they stand to inherit their father's Residuary Estate. Failure to do the latter would not bring harm to their foremost objectives since the intestacy law would still render them recipients of their father's estate should both wills be revoked. A. Claims Against Charlotte and Trevor Michaels There are several areas of the law that can be applied to this probate case. They need to contest the will based on several items, namely, fraud and undue influence, capacity to make a will, animus testandi and failure to carry out necessary and lawful formalities in the execution of the contract. 1. Fraud and Undue Influence In the case Partiff v Lawless, it is determined that there will be no presumption of undue influence from evidence suggesting a close relationship between the party suspected to have used influence and the testator, unlike inter vivos transactions. Moreover, to be able to establish that there was undue influence, it would be necessary to present evidence showing that the testator was forced against his will. This point was highlighted in Hall v Hall,1 wherein it was stated that while the testator can be led, he may not be driven and that the will should be made from his own volition and not somebody else's. Coercion can be applied in a multitude of ways, but the test being applied always asks if the testator’s volition was overborne. This test is prejudiced, so the result relies on the effect of pressure or threats on the specific testator.2 Therefore, if the testator is weaker, both physically and mentally, it would be easier to reveal undue influence and vice versa. The person claiming undue influence carries the burden of proof. Very strong evidence is needed to back up such serious allegation. If an individual declares such accusation without supporting evidence, the court has the right to penalize them in form of costs.3 Fraud is deliberately misinforming the testator, influencing the making of the will and the provisions within. Just like that of undue influence, accusations of fraud is serious, so it must be made with sufficient proof. 2. Capacity to Make a Will To be legally capable of making a will, the testator should be 18 or above.4 Furthermore, he or she should be mentally competent to be eligible to make a will, one requirement that raises numerous concerns. The test of mental competence is clearly manifested in Banks v Goodfellow. Under this case, the real test of mental competence is if the testator made the will with a mind and memory that is both sound and disposing. This necessitated the testator to possess a complete understanding of the kind of business in which he is involved in, a memory of the property he is to give away, of the people who he intends to give the property to and the way it is to be distributed among them. It should be noted that the testator only needs a general recollection of his possessions but he should, at the very least, be conscious of the people who may possibly have a legal hold on his property, even if he chooses not to benefit them.5 The complexity of the will may determine whether or not the testator indeed has the required capacity. If the will is more sophisticated than usual, a greater deal of understanding is needed. However, if the testator is as competent as Banks, he is capable even though his provisions are fickle or unconventional. It was indicated in the case Boughton v Knight6 that the law does not provide that an individual is unable or incapacitated from executing a will if his disposition with regard to his property were driven by motives that are bad, capricious, mean or frivolous. Delusion is yet another basis for contesting a will. It is defined as an illogical belief which cannot be stamped out by a logical line of reasoning. This, however, does not necessarily mean that every delusion will hinder the testator from being competent. Only the delusions that may have a direct influence on his provision-making in the will and lead to his not possessing a sensible and organized mind and memory. Some examples are: Banks v Goodfellow - The testator experienced different delusions, predominantly that “evil spirits” pursued him; held, his capacity was not affected. Battan Singh v Amirchand7 – The testator did not include his nephews in the will because he had a delusion that they were dead; held, will declared invalid. Smith v Tebbitt8 - the testator left only a small portion to her sister because she was under the delusion that her sister was the “child of the devil” who needed to be “cut off”; held, will declared invalid. Dew v Clark – Testator left only a small part of his huge estate to his daughter because he claimed that she was “a special property of Satan”; held, will declared invalid. Re Bohrmann – Testator did not include English charities in his will because his delusion was that the London County Council was persecuting him; held, will declared partially invalid. The court may decide to hold only selected portions of the will as invalid due to testator’s delusions. Incidentally, this was the first will that was partially invalid that had been found. In terms of the time when capacity of executing a will is required, during the execution of the will, the testator should be mentally competent. Therefore, the will would not be invalidated by his incompetency before or after the execution of will9. The one notable exception to the rule, instituted in Parker v Felgate, is that if a testator that is mentally competent provides directions for his will, but loses competency during the execution of will, the will is considered valid provided that the directions were instructed to a solicitor, the will was produced in compliance to said directions and that the will was executed by the testator while knowing that he was executing it for which he had provided directions. This rule was recently employed in the case Clancy v Clancy.10 If there are doubts regarding the mental capabilities of the testator, the best practice is to have the testator examined by a professional medical practitioner, who then should take down his findings and be a witness to the will and state if he is content with the mental capacity of the testator, primarily cases where the old and infirm are involved. This procedure was dubbed the “golden if tactless rule”11 in the case While the rule was approved by the Law Reform Committee, they did not suggest it to be performed. This rule has constantly been described as a likeable rule in cases like Buckenham v Dickinson and Re Parsons, with an addition that such kinds of cases should be specially conducted by a solicitor who has experience of making wills with such conditions in the past. There is no specific rule that states that a drunk individual or one who is under the influence cannot create a will, but the will’s propounders must prove that the testator has the needed mental capacity during the relevant time. One example is the Chana v Chana case, wherein the will executed by a heavy drinker was validated. It was then said that for the will to be invalidated, drunkenness should have thwarted the testator from knowing and understanding the quality and nature of the act, which is will-making, on which he was taking on. In cases involving contentious wills, the burden of proof relies on the profounder. The essential rule is that the will’s propounder should be able to please the court, on a balance of possibilities, that the will was made while the testator was mentally competent. But, if the will looks logical from the very start, it is safe to assume that the testator was mentally capable to produce the will. If, however, a party contradicting the will confutes this assumption by presenting evidence to the contrary, then the propounder will receive the burden of proof.12 Conversely, if the will is illogical on its face, it will be assumed that the testator did not have the required mental competence, but the assumption is refutable. Moreover, the burden of proof can be influenced by the assumption of the mental state continuance. If there is any proof that the testator was mentally capable before the making of the will, it will be presumed that he continued being competent during its execution. Likewise, if he suffered mental disorder before the execution of the will, he will be presumed to have remained ill during the time of execution. As usual, these presumptions are refutable as long as sufficient evidence is provided. 3. Animus Testandi To be able to create a legitimate will, the testator should have the objective of making it, or “animus testandi”, when he executes the will. Hence, capability and animus testandi is needed – the capacity to create the will and the plan to do so. In d’Eye v Avery, capacity was a basic capability to perform something, while animus testandi (knowledge and approval) required appreciation and alertness of a certain instrument. To show animus testandi, it must be made proven that the testator made known his desires regarding what will become of his properties once he dies. In Re Knibbs, it is stated that a statement given by the deceased indicates that the property disposition is not merely for its audience's information but conveys to the audience that the wish should be acted upon. Under animus testandi, knowledge and approval is vital. It is required that the testator knew of and authorized his will when it was executed, which was brought about by the need for animus testandi. According to the Civil Procedure Rules 1998, lack of knowledge and approval on the part of the testator is one of the grounds for invalidating the will. The other grounds mentioned are: that the testator did not have sound understanding, memory and mind; that the will was not appropriately executed; that the will’s execution was achieved through fraud or unnecessary influence. The propounder of the will carries the burden of illustrating knowledge and approval. However, if the testator was mentally competent during the will’s execution, the presumption is that the will was made with the required knowledge and approval.13 If there is proof of “suspicious circumstances” regarding the will’s execution, this refutes the assumption of knowledge and approval. In addition, the burden is passed on to the propounders of the will, who must clear all doubts and thus confirm knowledge and approval. The case law in terms of suspicious circumstances mainly focuses on the situation where a specific beneficiary was part of the preparation of the will. In Barry v Butlin, it was reiterated that when a person/party arranges the will and benefits from it, the court’s suspicion should be aroused and made jealous and watchful during the examination of evidence supporting the will. Also, the court must not uphold said will unless all suspicions surrounding the execution is eliminated. Wintle v Nye is the best example of the employment of this principle. In this example, a solicitor who prepared the wills and codicils of the testatrix (a female testator), under which he substantially and increasingly gained from, was not able to oppose the suspicions thrown at him. In Tyrell v Painton,14 it was held that the rule necessitating the propounder to eliminate doubts was not limited to situations where a beneficiary prepared the will, but applicable to any case with well-grounded suspicions. If a will is mistakenly executed by the testator, he will lack the needed animus testandi concerning that said will.15 Equally, if certain sections of the will were included mistakenly without the knowledge and approval of the testator, they can be removed from probate.16 But if the mistake of the testator was as to the provisions’ legal effect, he will comply with said provisions. If the testator commits a mistake regarding the will’s contents and resulted to his lack of knowledge and approval of them, two plausible solutions are offered – omission or rectification. When defined, omission are the words contained in the will that were not meant by the testator to be included may be omitted by the court, given that the substance of what’s left in the will is not affected as a result of omission.17 On the other hand, rectification according to S.20(1) Administration of Justice Act 1982 is something the court allows on the will should it fail to fulfill successfully the testator's intentions due to failure to understand instructions or due to clerical error. 4. Formalities In executing valid wills, the formalities required may be guided by s.9 Wills Act 1837 under the rich case law. In order for a will to be validated, it should be made in writing, except for a privileged will created by a seaman or soldier (refer to Chapter 8). S.9 has no explanation of “in writing”. However, the term has been widely interpreted to include different means of showing words in a visible form. Any materials could be utilized, as long as a permanent visual representation form is made18 . Additionally, any symbols, code or language are suitable on condition that the writing is comprehensible.19 The will must be personally signed by the testator or another individual provided that it was signed in his presence and was directed by him. The requirement states in S.9 (a) that the will be “signed” is widely interpreted. As indicated in Hindmarsh v Charlton, there should be a name or just a mark that represents the name.20 Meanwhile, Re Parsons [2002] WTLR 237, a thumb-print was enough proof. The will is valid even though it is not the testator himself who signs, as long as it was on his behalf, done in his presence and direction. “Presence” necessitates that the testator was both physically and mentally aware during the signing of the other person. If the will is exceeds one sheet of paper, signature can only appear once only if, during the signing, there was a “nexus” or any form of attachment that was holding all the sheets together.21 It is required in Section 9(b) that the testator intended for his signature to give effect to his will. As a result, the signature is official, wherever it turns up on the will, as long as the requirements are satisfied. Normally, a signature placed on an envelope where the will is contained may be sufficient, even if the actual will was not signed.22 However, if the said signature was meant only to determine the envelope’s contents, S.9 is not fulfilled and is not valid. The signature should be done and acknowledged by the testator while in the presence of no less than two witnesses all present at the time of signing according to s.9(c). It is known that witnesses must be physically and mentally present. In terms of mental presence, according to what was stated in Brown v Skirrow that witness/es must be capable of saying that he knows that the will was signed by the testator. However, witnesses are not required to know that a will is being signed by the testator. On the other hand, physical presence means that a clear line of sight between the testator and witnesses during the moment of the signing of the will is required, regardless if the witnesses actually saw the testator signing. It is valid as long as the witnesses had the chance to see during that moment. “Acknowledged” was not defined in Section 9 but it is evident that no specific kind of acknowledgment is needed.23 The testator should demonstrate, through conduct or words, that he acknowledges the signature as his own writing.24 The witnesses do not have to know that the testator is recognizing his own signature to his will. But they need to be physically and mentally present. Hence, they should be aware of the conduct or words that take place during the acknowledgment and there should be a passable line of sight between the signature and them at the moment when the testator makes the acknowledgment. S.9(C) states that there should be a minimum of two witnesses present right at the same moment when the testator acknowledged or signed and witnesses should be physically and mentally able to be “present” during the will’s execution. Therefore, it is required that a witness is capable of seeing.25 In addition, the witness should also be capable of signing a will, for this is a requirement in S.9(d). However, it is notable that there is no minimum age specified in the Act. For instance, a 14-year old boy was used as a legitimate witness.26 Section 9(d) necessitates every witness to either 1) make an acknowledgment of his signature with the testator present, or 2) attest and sign. The former means that witness should witness the testator's operative signature that executed the will. She should then make a mark that is supposed to be his signature. Unlike with testators, the witness should sign personally. Though witnesses signs as one, he will be presumed doing so contrary to evidence. It is lawful for the testator to be present, in the same manner as in s.9(a) and © wherein the testator should be both physically and mentally present upon signing or acknowledgment of the signature. The testatrix in Re Chalcraft, for instance, was considered mentally sound though she was already slipping into an unconscious state when she signed the will in front of witnesses. In terms of physical presence, the law that requires an unobstructed view between witnesses and testator is applicable. It is however noteworthy that though the witnesses should sign in the presence of a testator, they need not sign while in each other's presence. 5. Intestacy Law For deceased individuals who did not leave any will, their properties will have to go through the intestacy regulations. In the case at hand, should the courts find both wills invalid based on any of the abovementioned reasons, Carol Nash and her sibling, Louise Pendleton, along with their children, will be inheriting the estate of John Pendleton in accordance with the intestacy law. CONCLUSION Given the pertinent laws mentioned above on contentious wills, it is apparent that Carol Nash and her sister has a strong case against the Michaels. The aforementioned reasons for invalidating a will can easily be applied in this case. To prove the point, each reason should be discussed individually. On contesting a will due to fraud and undue influence, the Michaels may be held liable by reason that testator john Pendleton may have been driven to sign the second will not from his own volition, having been suffering from dementia and having been administered morphine and other strong pain relievers during the latter part of his life. This can easily be proven by his medical records. If proven, this can invalidate the second will and be declared fraudulent. The second provision indicated, i.e., capacity to make a will, the same premises mentioned could be applied. The medical history of John Pendleton would clearly show that dementia has set in and he has become forgetful in the last couple of years of his life. He had painful cancer that necessitated the use of pain relievers that has rendered him almost unconscious, confused and incomprehensible. How then can he manage to execute a will at his own volition in a solicitors office 200 miles from his home. It is necessary that the testator is mentally competent upon signing of the will. If doubts are present as to this fact, then it would be best practice to determine the testator's mental capabilities with the assistance of a physician who can serve witness if the case reaches the courts. On the third reason for contesting a will, i.e., animus testandi, approval and knowledge of the execution of the will is imperative. Its absence invalidates the will. It is necessary that John Pendleton is aware of creating the will and is authorizing its execution. This fact puts doubt in the 1020 will since it was made roughly about a month before he died. John Pendleton, at that time, was already in a late stage of dementia and is already quite confused having been in a morphined state. It would be close to impossible for an individual being put on morphine to be able to knowingly approve the execution of a will that disinherits his own immediate family in favor of hired helps which are not even relatives. On the last reason for invalidating a will, the formalities of creating the 2010 will of John Pendleton is highly questionable. Firstly, the rules say that the testator's signature should be acknowledge or witnessed by no less than two witnesses present during signing. However, as declared by the witnessed himself, Frank Statham, he is vaguely aware of what he signed and that he is positive that nobody else was present when Charlotte Michaels asked him to sign. This undermines two provisions of the Will Act 1937, i.e., that two witnesses should be present and that the witness should have knowledge of what is being executed. Additionally, Witness Statham declared that testator s not even in his line of vision when he signed, a fact that is not within the Will Law. Given all the preceding premises, it is suffice to say that the case of Carol Nash and her sister is strong and the chances of reinstating the original 1992 will of John Pendleton, the one that favors the sisters, is good. In case the court finds both wills invalid, then the law of intestacy would still favor the sisters. Word count: 3,857 PBL ASSESSMENT RESEARCH DIARY 1. Planning The areas explored were: Intestacy Law; Will Act of 1937 Civil Procedure Rules 1998 Administration of Justice Act 1982 Various Case Laws Within these areas I looked at: S. 7 and S. 9 of Will Act of 1937 S. 20(1) of Administration of Justice Act 1982 Initial Strategy and how this developed Firstly, I collected the print and electronic based references and sources which I found helpful and relevant, i.e., Intestacy Law, Will Act of 1937, Civil Procedure Rules 1998, Administration of Justice Act 1982 and a whole lot of case laws that served as basis for most of the rules on wills and on contesting wills. Other information from the internet were also of vary useful nature. 3. Further Research In order to ensure the case law I was using was relevant and up-to date, I looked up several cases on different online libraries like Westlaw, Wiley, Jstor, etc. Most of the case laws I used I this paper are in the reference section, e.g., Hindmarsh v Charlton, Banks v Goodfellow, Barry v Butlin, Battan Singh v Amirchand, Clancy v Clan, Ewing v Bennett, Hall v Hall and Harwood v Baker to name a few. 4. Reflection I felt the following aspects of the strategy worked well: adoption of an approach that is both organized and systematic. I formed in my mind first that things I needed in a chronological order and listed them down. I planned the work well and budgeted the time in accordance to the deadline. It classified the difficult topics and the simpler ones and worked on the easier ones first. More time and effort was devoted to the more complicated subjects and activity within the paper. Becoming a member of several useful online libraries that allowed me easier access to case laws and other resources that proved useful in creating this paper. Making use of reliable and actual case law studies that made my paper quite credible.   I felt the following aspects were less successful:  Failing to use keywords and search engines in my pursuit of references that rendered some delays on the paper. References Hindmarsh v Charlton [1861] 8 HL Cas Banks v Goodfellow Barry v Butlin Battan Singh v Amirchand [1948] 1 All ER 152 Clancy v Clancy [2003] WTLR 1097 Cutcliffe’s Estate [1959] PC Ewing v Bennett [2001] WTLR 249 Hall v Hall [1868] 1 P&D 481 Harwood v Baker [1840] 3 Moo PC 282 Hodson v Barnes (1926) 42 TLR 71 Hudson v Parker [1844] 1 Rob Ecc 14 In the Estate of Bravda [1968] 2 All ER 217 In the Goods of Mann [1942] 2 All ER 193 In the Goods of Sharman (1869) 1 P&D 662. Kenwood v Adams (1975) The Times, 28 November. Smith v Tebbitt [1867] 1 P&D 398 Symes v Green [1859] 1 Sw&Tr 401 Will Act 1937 Wilson v Beddard [1841] 12 Sim 28 Wingrove v Wingrove [1886] 11 PD 81 Read More