Disputed estate claims are on the increase but determining what to claim and when can be crucial. It may concern the validity of a Will, an application for reasonable provision under the Inheritance (Provision for Family & Dependants) Act 1975 or perhaps even both.
That was the dilemma facing the Court in Henein v Laffa (2015) and you would be hard pushed to find a more difficult outcome than that suffered by the claimant, Joseph Henein.
Henein v Laffa
Case background
Joseph was married to his wife Mary since 1983, although he had known her from many years before. They had a close relationship but no children of their own. For reasons which remained entirely unclear to Joseph, Mary inexplicably severed the joint tenancy of the house she co-owned with him. Had she not done so it would have simply passed to Joseph by survivorship and outside the terms of any Will upon her death.
At around the same time she executed a new Will which left her entire Estate to her son by previous relationship, Mr Laffa who was the defendant. She did all of this a matter of days before her death in 2008 following a long illness.
Legal proceedings
Joseph tried to set aside the Will by calling into question Mary’s testamentary capacity and whether the Will had been validly signed and attested. He also challenged the Will on the grounds Mary did not know or approve its contents and that she was unduly influenced by Mr Laffa. He also claimed the notice of severance of the joint tenancy had not been validly served. Notably, Joseph did not make a claim under the 1975 Act.
The Judge heard evidence from the solicitor who drew up the Will as well as an expert in Old Age Psychiatry. The Judge subsequently upheld the validity of the Will and also held the severance of the joint tenancy had been validly served. This meant Joseph lost and was ordered to pay Mr Laffa’s legal costs as well as his own. Joseph’s costs were £54,000 and Mr Laffa’s £72,000.
The net result was that the property would have to be sold to meet those legal costs and a very significant share of his equity in the house would be swallowed leaving Joseph homeless.
This was the worst possible outcome and Joseph took his understandable sense of injustice to the Court of Appeal seeking permission to launch a full appeal. The Court of Appeal unsurprisingly expressed their sympathy with Joseph commenting it was a “grave injustice”. But it could not overturn the Will because the Judge below had heard the evidence and correctly applied the law.
It also upheld the service of the notice of severance of the joint tenancy. At this late stage, Joseph then tried to raise an alternative claim under the 1975 Act but this was squarely refused as it was not part of the application before the Court and the time for initiating such a claim had long since passed.
So in hindsight what could Joseph have done differently?
It seems that had Joseph made a 1975 Act claim at the same time as challenging the Will (provided it was within 6 months of the date of the Grant of Probate), it is likely this would have succeeded in light of his limited means and his age (he was 82). Joseph was the spouse and a dependant of Mary and that would have given him good prospects of a successful 1975 Act claim.
It is almost certain he would have been given at least a life interest in Mary’s share of the property, effectively allowing him to live there until his death. That way his share of the property could then be bequeathed to whoever he wished by his own Will. And it quite likely a far earlier settlement would have been achieved when costs were considerably lower.
The case of Henein v Laffa also highlights the importance of leaving a detail note explaining dramatic changes in a Will so close to death, especially when it profoundly affects someone so close. It is often prudent in those circumstances to leave some form of record of the reasons for the change as it may give much needed context to the deceased’s thinking and clear up any confusion.
If you are a disappointed beneficiary on the receiving end of dramatic change in the terms of a Will, it is important to receive the right advice and guidance as soon as possible.
How Nelsons can help
Kevin Modiri is a Partner in our Dispute Resolution team, specialising in inheritance dispute claims.
If you have any questions in relation to the subjects discussed in this article, please contact Kevin or another member of our expert team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.