A Battle of Wills
A Battle of Wills
Some of the most bitter family disputes arise over inheritances. Tony Wardle recounts a seven-year struggle that has important lessons for us all.
I never met John even though he supported Viva! for seven years before his death but I now see him as a dear friend. He left us a generous bequest in his Will but before I could even absorb his kindness, a letter arrived from a solicitor representing John’s sister informing us that a caveat had been lodged and the Will was blocked. The claim was that John had a serious mental disability and was not capable of making a Will – he lacked testamentary capacity.
In 70 remorselessly negative pages, his sister recounted John’s 64-year life in extraordinary detail. He had had a disfiguring accident in his teens following which his personality had effectively collapsed. He was a paranoid, sad man devoid of warmth or any other human emotions apart from violent thoughts, anger, frustration and delusions and it was lucky that no tragedy had befallen her and her children.
She said he had wandered for hours through the woods in dirty old clothes, washing in streams, muttering to himself and shouting at the voices which plagued him. He was not living but merely going through the motions. It was backed up by a psychiatrist who had never met John but believed he was schizophrenic and lacked testamentary capacity.
In an attempt to prove one particular point, the sister had included a long statement from the family solicitor, who had carried out numerous legal functions for John over many years. He said nothing negative about him and then a phrase caught my eye that I suspect had been overlooked by the sister and her solicitor: “I was never in any doubt that John had testamentary capacity.” It was the exact opposite of what she had wanted to prove.
Other statements from people who had met John, some very briefly, claimed he was eccentric, dressed scruffily, was a one-off and a bit strange but none confirmed the more dire claims that his sister had made.
We eventually managed to interview the woman who had drafted John’s Will. He had, she said, come fully prepared, was dressed appropriately and was a very pleasant and intelligent man. She also was in no doubt that he had capacity. Clearly, the picture was not quite as had been painted.
We knew that John owned some very low-quality flats and houses and discovered from a friend that he used them to give a leg-up to people who might otherwise be homeless. Some were down on their luck and some had problems with addiction but John was prepared to give them at least one chance to pull things together.
This man who had “never worked in his life” was managing a very complicated estate successfully – his estate!
We also discovered that the sister, who lived abroad much of the time, had been quite happy to leave her young sons with John and his mother for long periods of the school holidays – so much for her express concern that John posed a potential threat to them. Yes he lived a Spartan life devoid of even basic comforts and dressed scruffily but was not insanitary. And dangerous? Not a scrap of evidence.
As well as providing homes, John also got up very early and took sandwiches to the homeless before feeding squirrels in the park. He had taught himself to play the piano proficiently and was keenly interested in wildlife.
It was true he walked for miles through the beautiful woods of the Wye valley (hardly proof of mental problems) or rode a bike and he did it because he loathed cars and aeroplanes, correctly believing they were hugely damaging to the planet. So, the man who was an empty shell with no emotions or interests was anything but Over and over it was claimed that it was illogical for John to leave money to a vegan charity when two witnesses claimed to have seen him eating meat – another sign of his incapacity. Even assuming the witnesses were truthful, one third of Viva!’s supporters eat meat so it proved nothing.
One-by-one we tracked down other professionals who had worked for John and their opinions were uniform – yes, he was eccentric but he was an intelligent man, chatty and eminently likeable and who was very knowledgeable about the property market. Some expressed genuine anger that he should be accused of lacking capacity.
In this crazy world of retrospective diagnoses, we needed to produce our own psychiatrist and our very astute solicitors went for a man of global standing whose specialist area was not a particular condition but testamentary capacity itself. His view was that whatever John’s diagnosis his condition was mild and he clearly had testamentary capacity. The reason for all the guesswork was because John hated doctors and had not consulted one for over 40 years so had no medical notes.
This, then, was essentially how the two sides lined up and the question was whether to proceed or not. Our solicitors ended my dilemma by offering a no win no fee deal. Over the seven years that the case lasted there were numerous twists and turns and mini trials, all of which we won.
And so we went to trial – six days of wigs and gowns in the High Court – with a superbly prepared case and a young, female barrister with a mind as sharp as a razor. Intelligent, alert and perceptive, the judge found for us on every important point, leaving the sister facing a costs bill well in excess of £500,000.
The main lesson to take from this is: if such a battle can ensue when there is a will, imagine what can happen when there isn’t one. Make a Will – I promise you won’t die because of it.
Both this case and others I’ve been involved with have shown me that there are some very good and very bad solicitors out there, so select your solicitor carefully!
We had to dump our original choice of solicitor and so I did detailed research before appointing our second solicitors (the Wilkes Partnership), who handled most of the case and were excellent – clear and consistent advice, knowledgeable, friendly and prepared to work with me. With a specialist ‘contentious probate’ department, they were used to battling – absolutely vital if a probate case turns nasty.
There is a world of difference between straightforward probate and contentious probate and some solicitors simply use their general litigation department rather than having specialists. By contrast, Wilkes do have specialists who are members of ACTAPS – the Association of Contentious Trust and Probate Solicitors. They are now our solicitors of choice.
Their other niche area handled by one of their specialist teams is Court of Protection matters, which works with the Office of the Public Guardian to protect the interests and rights of people who lack capacity or are heading that way. Many solicitors have no specialist departments and will claim to be able to deal with anything and everything. Jack of all trades.
Situated in central Birmingham, the Wilkes Partnership is an independent firm with 19 partners and the fact that they weren’t next door posed no problems at all as communication was constant. They are eminently capable of dealing with any legal matters you have.
At our request, Wilkes have agreed to offer their Will writing service to Viva! supporters at a discount, if you are generous enough to remember us in your Will. John’s case shows the importance of having a solicitor who actually meets you and, if necessary, can contradict any challenge to your testamentary capacity. It may be very unlikely but The average cost for a simple Will is £150 and for a mirror will (usually husband and wife) about £250. They will offer a onethird discount on these figures. However, they insist that they meet you in person. If going to Birmingham is out of the question – and there are a sufficient number of people interested – they are prepared to organise joint meetings outside Birmingham.
If you are interested in following up this offer, please contact me, Tony Wardle, at Viva!, 8 York Court, Wilder Street, Bristol BS2 8QH. Tel 0117 944 1000 or email email@example.com.