By far the largest cross-section of Wills and Probate disputes crop up between siblings and family members. There can be hardly a family occasion more likely to give rise to a war between brothers and sisters than the death of a parent and the discovery that the Will does not say what they thought it would.
Barely a week goes by without a news report of a family in Court to establish whether one or other of them has pressured a parent into changing the terms of their Will. Such cases are not restricted to the children of the deceased of course – wider family members who were expecting a certain share of the Estate may also bring claims.
Barker v Abdelnoor – claims of undue influence
The most recent of this crop is the case of Jason Abdelnoor, a 76 year old mathematician who was accused by his nephew Elten Barker of bullying his mother Pamela Abdelnoor into changing her Will.
Mrs Abdelnoor left an Estate worth approximately £1.2 million. Her Will, a year before her death, changed the disposition of her Estate in her son and daughter’s favour. By her 2018 Will, Pamela Abdelnoor left her son Jason and daughter Gillian a share of her estate worth £600,000 whilst the share left to the children of her late daughter Carolyn Barker, Elten and Shelly Barker, was reduced from £280,000 between them to £27,000 each.
Bringing the claim to set the Will aside on the grounds of undue influence, Elten Barker argued that Jason Abdelnoor was exerting an 'overwhelming degree of undue influence' over his mother who, in turn, no longer had the strength to stand up to him by the time the 2018 Will was made.
It was argued that Pamela Abdelnoor intended to divide her Estate equally between each of her 4 children. Her daughter Carolyn pre-deceased her and so the argument was the Carolyn’s children should take the share that would have been left to their mother. The 2018 Will left them only a small share of the Estate.
In her 2012 Will, Pamela Abdelnoor, left 20% to each of her surviving children with Elten and Shelly Barker inheriting the 20% their mother would have received. The remaining 20% was then divided equally between all of her grandchildren. The 2018 Will left 25% to each of the 3 surviving children with the balancing 25% divided equally between her 11 grandchildren – including Elten and Shelly Barker.
Ultimately – despite arguments for Elten Barker that he had a special bond with his grandmother and had moved nearby to care for her and ensure she did not have to go into care – the Court was not persuaded. Master Pester, giving judgment, found that there was no evidence that Pamela Abdelnoor had been influenced. She had instructed a solicitor to draft the Will for her and had expressed a wish that all of her grandchildren should be treated equally.
Testamentary freedom
This case shows that just because a Will makes a fairly dramatic change from an earlier version will not automatically mean that it came to be drafted as a result of pressure from a family member.
The principles of testamentary freedom ensure that – as long as the legal requirements of a Will are abided by and the person making the Will knows and understands that they are doing so – they are free to make and change their Will so long as they have testamentary capacity.
The changing of a Will may well excite the attention of relatives whose share of an Estate is much-reduced as a result but that will not automatically mean that a Will is invalid.
The instruction of an experienced and reputable solicitor to draft a Will can help to ensure that arguments of undue influence are less likely to succeed.
Still, however, there is also no substitute for talking to relatives about a Will and explaining changes made and the reasons for that. This prevents the moment – after death – when the actual terms of the Will come to light and someone’s heart drops as they realise their expectations will not be met.
Our experienced team at Howes Percival can assist on all aspects of Contentious Trusts and Probate. For more information click here.
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