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Charities defeat family's claim for probate of home-made will

Thursday, 19 November, 2015

Four charities named as Dorothy Whelen's residuary beneficiaries have defeated a claim that she executed a second home-made will leaving her entire estate to a friend.

Mrs Whelen made her first will in 1982, although only a copy survives, not the original. It was one of a pair of mirror wills prepared for her and her husband by her solicitor. The couple had no children, and both wills left everything to the other spouse if still alive, and otherwise to the four charities – the Royal National Institute for Deaf People, the Royal National Institute of Blind People, Marie Curie Cancer Care and the Institute of Cancer Research.

Whelen died in February 2012 leaving an estate worth about GBP1.8 million. Her solicitor set in motion the process for obtaining grant of probate of the 1982 will, but by then a second will had emerged, apparently executed by Whelen in 1999 and witnessed by two former work colleagues of hers. This home-made will appointed as sole executrix Mrs Whelen's lifelong friend, Hazel Turner. Except for some modest legacies, it left the estate equally to Hazel Turner and Robin Summers, who had been Mrs Whelen's close friend and advisor.

The dispute turned on the circumstances in which this later will was executed. The charities considered it was invalid and went to court seeking probate for the 1982 will. As Hazel Turner was now 95 years old and mentally incapacitated, it was her son Alan Turner who appeared as defendant.

The charities' case was that Hazel Turner misled the two people who witnessed Mrs Whelen's will – a Mrs Tomalin and a Mr Hallam. According to the charities' counsel, Mrs Turner presented them with a will that she stated was her own, and persuaded them to attest it; but in fact it was Mrs Whelen's will. This theory was supported by forensic evidence suggesting that, when the 1999 Whelen will was witnessed, Hazel Turner's own will had been sitting directly underneath it. Moreover, the two witnesses to the 1999 Whelen will both gave evidence that they had done so at Hazel Turner's request and in her presence, and that they had not seen Mrs Whelen sign the will – although there was no real doubt that she had done so.

This and other evidence led the judge, Behrens J, to accept the charities' argument. He ordered the 1982 will to be admitted to probate. However, if the 1999 will had been properly attested, he would have admitted that to probate instead.

Behrens J awarded GBP50,000 of the charities' GBP215,000 legal costs against Alan Turner, although he had previously attempted to settle with the charities by dividing the estate among them. However the charities had refused, offering him only GBP5,000.

Sources