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Deathbed will is upheld on appeal.

31st October 2016 by Rob Kelly

Categories: What's New?

A challenge to the deathbed will of a father by the daughters he cut out of his £4m estate just hours before his death in hospital failed in Fitzgerald and ors v Henerty and ors [2016] EWCA Civ 701.  In giving instructions before signing his first and only will, the man communicated with his solicitor by nodding his head and speaking through an oxygen mask.  His daughters challenged the will on the basis that their father’s condition raised doubts as to whether he knew and approved the contents of the will.

The validity of the will was, however, upheld by a judge and, in dismissing the daughters’ appeal against that decision, a unanimous Court of Appeal noted that the father had previously stated more than once that, in his view, his daughters already had enough money.  He had taken independent legal advice and his solicitor had read the document through to him, and twice asked him if he was sure before he signed it.  The attack on the father’s decision to disinherit his daughters was described by one of the judge’s as “barely arguable”.

Further, the court held that a clause in the will by which the father granted to the company he founded an option to buy back his shares at their probate value, did not give rise to suspicion.  He had understandably wished that the company would continue to thrive after his death and wanted to avoid financial turmoil within his family.

The will was defended by the father’s partner and his two sisters, who were awarded substantial legal costs against the widow and daughters following the dismissal of the appeal.

If you would like further information please contact Rob Kelly.

This article provides information and comments on legal issues and developments of interest.  The contents of this article do not constitute legal advice, is not a comprehensive treatment of the subject matter covered, and should not be relied on as such.  Legal advice should be sought about your specific circumstances before taking any action with respect to the matters discussed.

Rob Kelly

Senior Associate — Dispute Resolution

Direct dial: 01202 755217


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Rob is an Associate Member of the Chartered Institute of Legal Executives (September 2009).  Rob also holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme and was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice.

Rob specialises in dispute resolution through litigation, arbitration and mediation, with particular emphasis on contractual disputes, claims involving allegations of professional negligence (which he has prosecuted on behalf of commercial and private clients and defended on behalf of insurers, re-insurers and Lloyd’s syndicates). He is regularly instructed in connection with substantial disputes involving contractual, professional negligence, contentious probate issues.  Rob also deals with contentious property and landlord and tenant issues.

Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.

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