A Will did not make fair and reasonable financial provision: Case study 2

We were approached by the client’s brother who was appointed attorney for the client under a Property and Affairs Lasting Power of Attorney. The client resides in a care home and the brother was concerned that the client’s circumstances may require the Court’s involvement, but that the client did not have capacity to conduct litigation on his own account.

We visited the client in the care home, together with the brother, in order to obtain instructions. We formed the view early on that the client did not have capacity to conduct litigation. The client’s wife died leaving a Will pursuant to which her entire residuary estate was left to the client on a life interest trust. Given the client’s substantial outgoings – care home fees etc. it seemed clear that the life interest arrangement would not make reasonable financial provision for him.

We worked with the brother / attorney in gathering together full details of the history of the client’s marriage, his needs, means and resources etc. Under the deceased wife’s Will, [CHARITY CONFIDENTIAL] become entitled to the entire estate on the death of the client – termination of the life interest. We prepared a comprehensive pre action protocol letter of claim seeking reasonable financial provision under the I(PFD) Act 1975 together with extensive supporting documentation. [CHARITY CONFIDENTIAL] instructed [OPPOSITION SOLICITORS] to act on their behalf.

Questions arose as to the suitability of the client’s brother to act as a Litigation Friend given the various potential conflicts of interest. We therefore commissioned a comprehensive report on the client’s capacity to litigate which confirmed our view that he lacked capacity. We then set about trying to find a suitable Litigation Friend to represent the client’s interests.

We have now appointed an accountant who is familiar with the client’s affairs to act in that capacity. We put without prejudice proposals for settlement to [CHARITY CONFIDENTIAL], however, these have been rejected. We are now gathering together further information and conducting a financial report in order to instruct Counsel to advise on quantum and merits.

In the event that settlement terms cannot be achieved, proceedings will have to be issued. In order to preserve the client’s rights to bring a claim outside of the six month period, we negotiated and entered into a Standstill Agreement. We are seeking substantial capital settlement on behalf of the client in place of the life interest.

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