I have written a will, being of sound mind, I hope, solely to ensure the future care of my two sons if the worst should 
happen to me.
There are not many noughts at the end of my bequests, unlike that of Branislav Kostic, who left £8.3m in his will to the Conservative Party.
It was successfully challenged by his only son Zoran, 50, at the High Court, who said his father was “deluded and insane” at the time of writing his will and he was entitled to the entire estate. He was naturally indignant at losing his inheritance.
I would have expected that Kostic senior’s solicitors would have been aware of the multi-millionaire’s delicate mental health; he was said to be suffering from paranoia. So why was it allowed to ever happen if he was mentally unstable? Doesn’t that make his solicitor negligent?
Is the mental stability of vulnerable people not checked in some way before they write a will leaving all their worldly goods to whoever they choose or whichever cause takes their fancy, anyone other than family? Should a doctor not be present or sign a form stating the person is of sound mind in exceptional cases like this?
Does the fact that a person has some form of mental instability mean he has lost all his faculties and is too unstable to make a decision about who he or she leave their money to? I would not necessarily have thought so.
It reminds me of the case of two Newmarket men who were left a £1 million stud by their former boss which was later challenged by his two daughters who claimed their father made his will after multiple sclerosis had left him paralysed and only able to communicate by nodding, winking and shaking his head. This made him unable to make a will, they claimed, and the judge agreed.
I know this stud and of the men involved as my son did work experience there just before this blew up. They were very genuine and highly regarded and nobody ever believed they had in any way coerced the will to be made in their favour.
How sane was it for billionaire Leona Helmsley to leave $12 million to her dog named Trouble? Although she also made bequests to family and charities, she excluded two grandsons for her own good reasons.
An inheritance is not a legal right. It’s cruel to cut out family from a will, but it’s usually done for a specific reason, it’s their catch-up time. Denied of their last wish, who knows if these people are now turning in their graves?
There are three great families of legal system in the world; Common, Civil and Islamic. I don’t know how it works in the last one, but in the Civil Law world (France, Germany and the other countries which derive their legal systems from Roman Law) you have very little scope to “cut anyone out” of your will. Most assets are allocated to members of your family according to the degrees of relationship established by the Ancient Romans. Love ’em or hate ’em, they get your hard-earned wealth and the only way to spite them is to live high on the hog in old age. You will find many old ladies in Nice and Cannes doing exactly that.
As a young lawyer in England, I saw elderly people using their wills as weapons to bring their families into line with their (sometimes rather irrational) wishes. I thought then that there was much to be said for the Civil Law approach. As a libertarian, however, I believe people should be free to do exactly as they please with their wealth, so must prefer our Common Law approach overall.
As for whether this gentleman’s lawyers were negligent, the answer is a resounding no. They were his lawyers, not his family’s. If anyone was to be advised of the risk that his will might be challenged, it was him. Maybe they did? Maybe he instructed them to go ahead anyway?
It seems that nobody challenged his legal capacity during his lifetime. Had his family done so, they could have applied to the Court of Protection to appoint a legal guardian. They only discovered his insanity when they realised the money was not coming to them! Why should his lawyers have noticed what his family did not, Ellee?
Everyone in our society is not a social worker. Nor, unlike the soft left in both the Labour and Tory parties, would I wish that they were. While this gentleman’s beliefs were partly eccentric (he was entirely right about Margaret Thatcher, of course) I suspect he was perfectly capable of deciding rationally how his money should be spent. Were he here now to have his say, I do not doubt that he would be furious. I am not at all sure that justice has been done.
Politically, however, the Conservative Party should not appeal. The press are having enough fun with the “insane to leave money to Tories” headlines as it is. I suspect the press will have their fun and the undeserving relatives will have their money. Such is life.
Yes writing a will is something I have on my list of things to do, I now know how important it is to have one, after there father died suddenly and had no will… my boys only have me now and i have to make sure they are taken care of if anything should ever happen to me…even if its only to make sure all funeral payments are taken care of….
PS: Before other legally-qualified readers pour scorn, I know it’s not the same legal test for capacity to make a valid will, but your readers may care to look at the interesting case of M’Naughten. This established the standard test for criminal responsibility for much of the Common Law world. To escape liability for what would otherwise be a crime, you must pretty much be a drooling idiot. Personally, I take the view that anyone sane enough to be held to account for a crime, is sane enough to make a will. Is it fair that someone should be considered responsible enough to be punished for a crime, but not responsible enough to dispose freely of his own property?
One line in the report of M’Naghten’s case resonates amusingly here. A distant recollection of it from my student days is why I looked the case up today;
“That a party labouring under a partial delusion must be considered in the same situation, as to responsibility, as if the facts, in respect to which the delusion exists, were real.”
Here’s the link to the case report for those who would like to read it. It is very interesting, I promise you (and much more clearly written than most blogs!):
http://www.bailii.org/uk/cases/UKHL/1843/J16.html
Tom, many thanks for your very lucid and professional insights. My point about the solicitor was based on the fact that a client should be protected from making a decision if he or she is deemed mentally unstable. I wonder why is this challenged after the will has been read, and not during its execution if it is medically established that a person is unable to make such decisions.
I have no idea about Branislav Kostic’s state of mind when he wrote his will. I agree with you that he is entitled to dispose of his wealth in any way he sees fit. I liked your definition for mental stability:
“Personally, I take the view that anyone sane enough to be held to account for a crime, is sane enough to make a will. Is it fair that someone should be considered responsible enough to be punished for a crime, but not responsible enough to dispose freely of his own property?”
Yes, it’s also worth asking why, if Branislav Kostic was mentally unstable, there was no legal guardian. I have actually been appointed to this position with my sister in case my mother becomes unfit and is unable to look after her affairs, a document has been signed by us at her solicitors. I hope that day never comes.
I enjoyed your link too.
Wills are so important, that the right people get that the deceased wants them to.
I have nothing to leave except, perhaps, my library, which I will give to the town of Modica. I can understand people leaving money to their dogs who are often more faithful than folk. How do you judge if a person is “of sound mind”? It’s a very difficult one and diffrent in every case, I should think.
By what right would a solicitor question the mental capacity of his client and how exactly would he go about doing so? It’s a preposterous suggestion. As to why wills are contested only after their contents become known I would have thought that was bloody obvious!! Doh!
As for M’Naghten and the insanity defence this has been almost entirely replaced with a plea of manslaughter on the grounds of diminished responsibility. Those considered ‘insane’ almost never go to court now because they are deemed unfit to plead.
Kostic was delusional. He wasn’t ‘mad’ and there was never any suggestion that he was. The court of protection would have had no jurisdiction over this man simply because he had delusions. Jeez, they’d be run off their feet if that was a criteria for their intervention. But it is not.
The question before the court was this: was he delusional? Yes, they decided he was. Did his delusional condition affect his decision to leave his money to a political party rather than to his son (who had until that time been the sole beneficiary)? Yes, the court decided that it did.
And why would you expect a solicitor to intervene when clearly the Tory party weren’t bothered: Andrew Simmonds QC said that while it was accepted that Mr Kostic had a delusional disorder it was not accepted that this made him incapable of making a proper will.
To (mis)quote Mandy Rice-Davies: ‘Well he would say that, wouldn’t he?”
Delusional? Yes but we’ll still take the money, thank you very much! What a shower.
Mike, how would you personally define “delusional”? Would you expect this state to be obvious to others at the time of writing a will, especially a solicitor?
I wouldn’t care if it was obvious to a solicitor or not, it’s none of his business. You were the one asking whether solicitors should question the mental health of their clients not me!
If I become convinced that Martians are about to land and decide to leave my estate to the King of the Martians who just happens to double as my milkman I should be allowed to do so. However, anyone feeling they had a justifiable claim to my estate is also perfectly entitled to challenge my decision and argue their case. Whether they are ‘underserving’ or not isn’t something a commenter to this blog is in a position to decide.
As for a definition of delusional, I’ll go along with whatever definition the judge AND the counsel for the Conservative Party used.
However, anyone feeling they had a justifiable claim to my estate is also perfectly entitled to challenge my decision and argue their case. AFTER my death, of course 🙂
I don’t think this is as simple as one would like to think. One cynically wonders if the son had been left half and the other half to the CP would he have challenged the will for the rest, saying his father was incompetent.
Interestingly enough when my Alzheimer friend that I look after, got to a certain stage his physician wrote to his solicitor and told him that he was no longer capable of changing his old will which the solicitor had been trying to get him to do for years since it was so outdated, mentioning people who had died since.
A shame really as he has no heirs and most of it will go to charity but I know he wanted to include more charities and his universities but never got around to changing it before it was too late.
Mike,
“Whether they are ‘underserving’ or not isn’t something a commenter to this blog is in a position to decide.”
No, but we can discuss the various issues surrounding the case and learn from each others views.
Non sequitur alert:
…we can discuss the various issues surrounding the case and learn from each others views.
Oh right, thanks, now I understand.
Sheesh!
Mike, My difficulty with this is that I would like to see vulnerable people protected. On one hand, I feel I should be free to leave my worldly goods to the man on the moon, or a toy boy I may have a mad fling with for five minutes rather than my sons. I feel there should be some measurable way to determine a person’s sanity when writing a will, which is why I liked Tom’s idea.
There is such a way in law. Like all legal tests, it’s not perfect and is open to interpretation. As I made clear, it’s not the historical test I quoted which dealt with other matters entirely.
As for “undeserving”, it’s an old Chancery lawyers’ joke after a will has been thoroughly litigated to say that “there was little left for the beneficiaries to squander.” B^)
More often than not, families arguing that testators lacked legal capacity are just miffed at their life choices. Consider J Howard Marshall and Anna Nicole Smith. Was he a mad old buffer, or wise enough to know that as he couldn’t take his bilions with him, he might as well have some fun with them before he went? Though Ms Smith was not to my personal taste, I am not at all sure – despite the lower court decisions – that there was anything irrational about Mr Marshall’s actions.
That case still drags on after Anna Nicole’s death. Despite the size of the estate, I am sure the attorneys will do their best to ensure there is not too much “for the [undeserving] beneficiaries to squander”.
What struck me about this case is that after having not spoken to his father in 20years that the son thought the money in the will was his right. I don’t know maybe I’m a simple soul but if I have not spoken to a relative for 20years I might not presume that I am mentioned in the will.
That said when I had a will done last year I wrote out all my many cousins, as any wealth I have is too small to have any rewarding impact on their lives. I took the view that it’s my money after all the tax has been paid and I will do what I like with it. I also left a % to my local Conservative Party. I am starting to worry that this may be a sign of mental illness.
Cookiemonster, You could indeed be considered “delusional” by some to leave some of your money to the Conservative Party. You are right to remind us about the 20 year gap since the son last spoke to his father in this case.
Abdi, Your comment was so interesting. I wonder if wills are contested under Islamic law.
“Should a doctor not be present or sign a form stating the person is of sound mind in exceptional cases like this?” (ellee)
I don’t think all that many doctors care who a paranoid millionaire leaves his fortune to. If he was mentally ill they would probably be more interested in dissecting his brain (or allowing their students to) than his estate.
I doubt many GP’s would care for politicans insisting that they trapse down to the soliticitors office as and when summoned to do so either. Some sort of standard form as part of the GP’s contract would just burden the taxpayer and increase waiting times for appointments.
These are things for the barristers to argue over, not the medical profession who probably have much better things to do.
Most sons/daughters/wifes/husbands etc contest multi-million £/$ wills.
Perhaps his last wish was that they fight over his stash?