A recent case over a disputed deathbed will highlights the risks involved in pursuing litigation unsuccessfully when the facts and evidence support a valid will and a capable testator.  The case is interesting both for professionals and for family members considering a challenge to a will under which they do not benefit.  The case involved forty witnesses many of whom were described by the judge as unreliable or partisan.  The solicitor involved in preparing the will before death and counsel involved in the proceedings were commended by the judge for taking practical decisions that, respectively, were sensible when taking instructions from a dying man and saved time during the hearing.  The subsequent costs hearing emphasises the financial risks to parties in taking disputed will cases to court and losing.

George Wharton lived with his partner of 32 years, Maureen. Mr Wharton had three daughters; two daughters from his first marriage and a daughter from an extra marital relationship.  Mr Wharton's relationships with his daughters were difficult and at times he was not speaking to some or all of his daughters.

Mr Wharton was suffering from terminal cancer and so made a decision to marry Maureen on his deathbed.  Beforehand, he executed a will 'in contemplation of marriage' which passed his residuary estate to Maureen absolutely, making no provision for his daughters or grandchildren because he believed they were 'independent'.  The principal asset in Mr Wharton's estate was his company shareholding, professionally valued for probate purposes at £4m.  If Mr Wharton had not married Maureen before he died, his entire estate would have been subject to inheritance tax. 

At the hearing, Maureen sought to prove the deathbed will while the daughters argued that Mr Wharton either did not know and approve the contents of the Will or it was obtained under the undue influence of Maureen.  

Despite criticism from the daughters' legal team, the judge found that the solicitor who took the instructions and oversaw the execution of the will acted entirely appropriately and his account was reliable.  As the judge found the will had been properly produced and signed by a testator with testamentary capacity, he looked at the other circumstances which could have affected the validity of the will, as argued by the daughters.

The judge found that Mr Wharton knew and approved the contents of his will and there was no proof that Maureen exercised coercion over Mr Wharton to uphold the challenge of undue influence.  The judge awarded costs in favour of Maureen against the daughters so that the daughters were ordered to pay Maureen's costs and those of the executors.

This case serves as a warning to disgruntled family members who pursue litigation when their case lacks supporting evidence.  The judge also criticised the daughters for their conduct before and during the hearing.  He concluded that they were 'determined to upset' the will, whatever the reality of the evidence.  While their father may have married on his deathbed, the devolution of his estate to his new wife (but partner of 32 years) was not, in his circumstances, surprising, in particular taking into account his generally poor relationships with his daughters.  The daughters may not have liked their father's decision, but they paid a high price for pursuing a case that was 'legally and factually weak'. 

This recent case also emphasises the value of asking a professional to prepare a will and the importance of taking proper advice before pursuing a claim in the Probate Court.