Procedural Developments In Contentious Succession

Contentious wills

The year has seen some interesting substantive law developments in the disputed wills field, most notably the clarification of the appropriate test for testamentary capacity in Re Walker, and more recently, the reining in of the expanded doctrine of Donatio Mortis Causa by the Court of Appeal in King v Chiltern Dog Rescue. Whilst substantive developments are exciting and covered widely in the legal press, it pays not to overlook interesting procedural aspects, which can be used to bolster the litigator's toolkit. There have been a few of note over the last six months... Taylor v Bell, Leeds County Court, 16 February 2015 provides an unusual example of an application to vary a consent order in relation to a 1975 Act claim. Mr Gardiner's will made no provision for his son, Miles, who therefore applied for reasonable provision under the 1975 Act. His application was compromised and the consent order provided reasonable maintenance for Miles' sixth form college and university (undergraduate and postgraduate) education until 31 August 2014. The maximum sum payable under the order was £210,000. For a variety of reasons including some linked to Miles's learning difficulties and injuries sustained in a road traffic accident seven weeks before the consent order, Miles's education did not progress as planned with the result that he did not graduate from Leeds College of Music when anticipated. In the event, he only received £112,443.21 from the estate. To further his career prospects (he was a talented singer and hoped to become an opera singer), he sought a variation of the consent order to fund the final year of the course at Leeds and a two year post graduate course at the Royal College of Music or the Guildhall School of Music in London. He estimated his expenses likely to be approximately £90,000. Counsel for the executors cited various authorities to support his submission that there is a heavy onus and on Miles and additional hurdles for him to overcome before the Judge could set aside the order. The Judge noted that Miles was not seeking to set aside the order but rather to vary the periodical payments under the express power in section 6 of the 1975 Act. Further, none of the authorities referred to were decisions on applications to vary a periodical payments order or in fact even decisions under the 1975 Act. As such the Judge was not assisted by the authorities and did not agree that Miles had to overcome specific hurdles before he could exercise his discretion...