The recent High Court case of Nobarani v Mariconte gives two important lessons when it comes to wills. The first is that it is important not to leave them too late, and to make sure that when they are drafted there can be no dispute about their validity. The second is to highlight just how valuable legal representation can be when wills are disputed.
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The case was about the will of the late Ms Iris McLaren. Ms McLaren had previously made a will in 2004, however, on 5 December 2013 she had prepared a new will. The 2004 will had left bequests to the Animal Welfare League and to Mr Nobarani. Her new will left all of her estate to Ms Mariconte. Ms McLaren passed away 12 December 2013 at 83 years of age.
It is possible for someone with an interest in an estate to file a probate caveat to prevent probate being granted of the estate without notice to them. This is what Mr Nobarani did in this case, claiming an interest by virtue of his having been a beneficiary of Ms McLaren's 2004 will.
Mr Nobarani raised a number of concerns about the "new" will. They can be summarised as falling under three broad areas. Firstly he raised concerns about whether or not it was properly executed. In this area he raised concerns about whether the signature on the document was actually Ms McLaren's and whether the purported witnesses had in fact witnessed the signature.
Secondly Mr Nobarani raised concerns about whether or not Ms McLaren had sufficient testamentary capacity to make a valid will. He based this concern primarily on his own experience. He said that on the day the new will was executed he visited Ms McLaren in hospital and said that she was "not alert but sleepy, and that she barely spoke". This ground it related to the third challenge Mr Nobarani made to the new will, namely that Ms McLaren did not know she was signing a new will at all.
It is natural for people to change their minds about how they want their estate distributed after their death. This can quite often happen as the event approaches. This case again highlights that it is preferable however that arrangements be made well beforehand and done in such a way as that there can be no doubt about the circumstances that the will came about.
The case made its way to the High Court, not because of the findings about the validity of the will, but because of the way the decisions were arrived at. Mr Nobarani decided to represent himself in the initial proceedings in the Supreme Court. Against him were solicitors, a junior barrister, and the Queens Counsel.
Ms Mariconte had consented the probate caveat lodged by Mr Nobarani, but had also applied for probate in separate proceedings, which Mr Nobarani was not a party to. When the probate matter came to the court for directions a week before the scheduled hearing it became clear that the caveat had expired.
The court decided to press ahead with hearing the probate application, despite the scheduled hearing being only for the caveat matter. Mr Nobarani was obviously placed at a very great disadvantage having to prepare for a complicated two day hearing against extremely experienced and accomplished barrister with only a week's notice. Ultimately, after an unsuccessful appeal to the Court of Appeal, Mr Nobarani was successful with his appeal to the High Court on the basis of a denial of procedural fairness.
What's the lesson? When it comes to wills, do them early and properly, and get legal advice at every step of the way.
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