Randall -v- Randall: Could the Consent Order agreed as to a divorce have been drafted differently to protect against a subsequent probate dispute?
The background is that when the husband and wife divorced they agreed that any inheritance received by the wife from her mother’s estate, which exceeded £100,000, would be shared with the husband. When the wife's mother died she left the wife £100,000 and she left the wife's children £150,000. The (ex)husband sought to challenge the validity of the Will on the basis it was a forgery, alleging that it had not been validly executed in accordance with section 9 of the Wills Act 1937. At first instance the judge held that the husband did not have sufficient interest to challenge the validity of the Will. The husband appealed.
The wife maintained that only those who were able to assert a right to administer the estate (not the husband) could bring a contentious probate claim. Since the husband was not named as an executor under the Will, he was not entitled to a share in the estate and was not a creditor of the estate he did not have a sufficient interest to bring the claim.
The court disagreed with the wife and allowed the appeal. The right to bring a claim was a procedural issue. The husband's position was not similar to a creditor of the estate. A creditor did not have sufficient interest to bring a probate claim. The Lord Justices were in agreement that the husband should be allowed to bring a claim to challenge the validity of the Will so as to ensure the case is dealt with justly. Significantly, if unable to challenge the Will, the husband would have no other route. Lord Dyson said ‘He is not a mere busybody. He has a real interest in challenging the validity of the Will.’
So, we are yet to learn if the Will was a forgery.
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