How to prevent someone selling estate assets in a will dispute or claim under the Inheritance (Provision for Family and Dependants) Act 1975

The team comments on the approach adopted by the court when deciding whether to remove a caution registered against land subject to various probate claims.

The court in Williams v Seals [2014] EWHC 3708 (Ch) has ruled that a beneficiary who inherited a farm is free to sell it, despite the will being challenged by the testator’s three adult children.

Background

The deceased, Arnold Seals, was a farmer from Derby. He had inherited the family farm he worked on in equal shares with his sister, from their parents. His estate therefore consisted of a half interest in the farm as well as some grazing land and residential property, estimated to be worth between £570,000 and £675,000. As Mr Seals’s sister had predeceased Mr Seals, the other half interest in the family farm passed to her children.

Mr Seals had three adult children; two sons and a daughter. His wife died of cancer in August 2010 and since then he had found it difficult to cope. He presented to his GP with symptoms of depression and attended A&E on a couple of occasions where he was seen by the mental health team. Mr Seals committed suicide in December 2013.

After his wife had died, Mr Seals rekindled a close friendship with Mrs Florence Williams, an old childhood friend. The court was presented with notes and letters written by Mr Seals to Mrs Williams which suggested that he was emotionally dependent on her and that she would call for a chat most, if not all, evenings.

Shortly after Arnold Seals’s death, it transpired that he had executed a new will in 2011, which left his entire estate to Mrs Williams, including his half share of the family farm. The will was prepared by a firm of solicitors who also prepared a letter of wishes which sought to explain the rationale behind excluding his children from his estate, and presumably on advice to attempt to head off any potential Inheritance (Provision for Family and Dependants) Act 1975 claims his children may bring after his days. Mr Seals’s reasoning was that he had lost touch with this children since his wife’s death and therefore wished to benefit Mrs Williams who he said had been a good friend and help during that period.

Arnold Seals’s children, upon learning of their father’s new will, put Mrs Williams on notice of their intention to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 and invited her to postpone the sale of the family farm. Mrs Williams declined so the children applied to the Land Registry to record a caution against first registration of the family farm (it had been in the family for a long period of time and had never been registered).

Owing to the 6 month time limit from the issue of the grant of probate to bring a claim under the Inheritance Act, the children issued their claim but also indicated an intention to challenge the validity of the will on the basis of lack of capacity and, further, to seek a declaration on the basis of a proprietary estoppel.

I’ll pause here and refer you to my colleague Eleanor’s blog which sets out the test for testamentary capacity.

Prior to the children actually issuing the two above claims against the estate, Mrs Williams applied to the court for the removal of the caution preventing first registration of the family farm. The reason for the application was that both Mrs Williams and the deceased’s sister’s children (the owners of the other half share of the family farm) wanted to sell it at auction.

Therefore Mr Justice Richards in the High Court had to decide whether to allow the application to remove the caution.

The law

The starting point, which all parties agreed on, was set out in Nugent v Nugent [2013] EWHC 4095 (Ch) by Morgan J; the court is obliged to remove an entry on the register where the claim on which the entry is based has no real prospects of success. In essence, this appears to be a policy (and common sense) approach as plainly it is undesirable to allow a caution to block the registered proprietor from dealing with their land on the basis of a claim that has no prospects of success.

However, Morgan J went on to say that, where there is a seriously arguable case that a party would succeed with their claim at trial in obtaining a proprietary interest in the land (or estate in this case), it is necessary to determine whether either or both parties would be adequately compensated by an award of damages.

Application to the facts

As it appeared that some of the children’s claims on the estate may succeed, the key question for Mr Justice Richards was to consider the impact on each party by the cancellation of the Land Registry caution and whether damages would provide adequate compensation and, if not, where the balance lay.

Richards J noted that the children did not want to run or live on the family farm; their interest was purely financial. The children only wished to maximise the value of the farm and benefit from development potential but had very limited means and did not have the resources available to purchase their cousins’ half share or develop the land.

Further, Richards J noted that the wishes of the family farm’s co-owners (the deceased’s nieces and nephew) had to be considered and they wanted the farm to be sold.

The judge said that if the caution was not cancelled, the farm could not be sold, which in turn led to a risk that the value could decrease and a certainty that extra costs, for example interest, would accrue. Should that situation arise, the children (who were short of funds) would be unable to compensate the estate for the hypothetical losses Richards J discussed above which may result as a consequence of the caution remaining in place. Conversely, it was understood from the children’s evidence (as Mrs Williams did not comment on this point) that she was independently wealthy and owned several properties. Richards J reasoned that if the estate suffered loss as a consequence of the caution being removed, Mrs Williams had the means available to ensure that the estate was compensated.

Therefore Richards J decided, having considered all of the above factors, that the most appropriate course of action was to have the caution cancelled and removed from the register, which would allow the sale of the farm to proceed.

Comment

It is interesting to note the court’s approach and thorough review of the facts pertinent to the matter, especially the prospects of the claims and means of the parties, with the aim of striking a balance between the two and to adopt a course of action which minimises the possible risk of loss to the estate.

Therefore, any would be claimant’s, with an arguable claim, seeking to register a caution (or restriction for registered land) against land that belonged to a deceased, should consider the possible losses to the estate as a consequence of their actions and whether they would be able to compensate the estate accordingly. Of course, there are other alternatives of seeking an injunction although, again, the court is likely to consider the same factors, or, where the estate is being administered by solicitor executors, of seeking an undertaking by the firm not to distribute the assets pending resolution of the claim.

Either way, the message from the court appears to be “cautiously does it”.