Fourteen disappointed children unsuccessful in challenging father’s Will
Posted on 7 February 2020 by Charlotte Dullaway
The High Court has provided guidance on best practice for those preparing Wills when considering a recent Will challenge in Kassim & Others v Saeed .
Mr Dhalei, the testator, died in March 2016 leaving a Will dated 10 October 2012. His wife, Mrs Saeed, was named as the executrix and principal beneficiary of the estate. The testator gave his wife two properties to dispose of for charitable purposes of her choosing and, subject to the payment of estate expenses, tax, funeral costs and the testator’s debts, the residue was to pass to her absolutely. The Will failed to provide for the testator’s nineteen children or his first two wives.
The testator’s fourteen children from his first two marriages issued a claim challenging the validity of the Will on the ground that the testator did not know and approve of the contents as a result of his limited grasp of the English language and his illiteracy. They relied upon their own evidence of their father’s ability to communicate and understand English as well as being critical of the regrettably sparse evidence of the solicitor who prepared the Will. The limited evidence the solicitor could provide did not confirm whether the solicitor has asked the testator to paraphrase the contents of the Will to ensure he understood it accurately.
Despite the fact that the drafting solicitor could not find their Will file and could provide evidence only in general terms, the claim was unsuccessful. The Judge placed significant weight upon evidence contained within the file of the solicitor who prepared the testator’s previous Will some fifteen years earlier which noted that he was deemed to be able to understand the Will at that time, although that solicitor arranged for an interpreter to translate the Will as well to ensure it was understood. The Judge’s obiter comments suggested that when preparing a Will for a testator who may not have a full grasp of the English language, best practice would be for the solicitor to ask them to paraphrase the contents of the Will to ensure their understanding.
From a Will writing perspective, there are two important lessons to be learnt from this case. Firstly, if you are illiterate or are not fluent in the English language, it is still possible for you to make a Will but you should ensure your solicitor is aware of these limitations so that steps can be taken to assist you in understanding the Will before you sign it. Secondly, and arguably more importantly, the Judge’s obiter comments identify steps solicitors should take when advising client’s whose grasp of the language used may hinder their understanding of the contents of the Will. If both these things are done it will make it more difficult, although not impossible, for any disgruntled parties to challenge the Will.
From a litigation perspective, the important lesson to take away from this case is that evidence is fundamental to succeeding, whether you are defending or bringing a claim. Whilst the evidence from the solicitor who wrote the 2012 Will was not particularly detailed, the evidence from other sources such as the previous solicitor’s file bolstered Mrs Saeed’s position and ensured the claim was defeated.
If you would like to discuss a potential Will challenge, whether you are considering bringing a claim or are having to defend against one, we are here to help. For further information and to discuss your claim please contact Charlotte Dullaway today on 01823 446230 or email firstname.lastname@example.org.
Posted in: Dispute Resolution