When families ask the courts to rule on perceived injustices, the process will inevitable reveal not just the surface meaning of the conflict - the legal content - but also its deeper meaning, which can be a painful experience. Law firm Mishcon de Reya explores the issues.

When families ask the courts to rule on perceived injustices, the process will inevitably reveal not just the surface meaning of the conflict - the legal content - but also its deeper meaning, which can be a painful experience. All the courts can do is try to administer justice.

The children of Jean Gorjat, a multi-millionaire electronics engineer, have failed in a High Court battle with their stepmother. Elisabeth and Philippe Gorjat and Sophie Charriere claimed that their father's wife Lucretia had coerced him into making a transfer of money to a joint account shortly before he died. Increasingly, these sorts of cases are coming before the courts as disappointed children vent their sense of injustice through legal channels. So, was justice done here?  

Under English law, children have no automatic right to inherit their parents' estate where a will has been made. If there is no will, the laws of intestacy operate, under which - if there is a surviving spouse and children - the spouse receives all the deceased's personal effects together with a sum up to the value of the statutory legacy (£125,000). Should the value of the estate exceed this and there are also children, then the surviving spouse would receive half of the balance of the estate for life. In other words, the half of what remains after the personal effects, the statutory legacy of £125,000 (around $187,000), and debts and expenses have been deducted. The remaining half would go to any children immediately (if they are over 18).

Undue influence

However, there is also statutory provision which allows children, in certain cases, to claim money towards maintenance at the expense of the estate. Quite separately from this, there are various grounds on which any interested party can challenge a will: for example, if the testator did not have sufficient capacity to understand the nature and effect of making a will, if he did know and approve of its contents; or (more obviously) if the signature of the will had been forged. One of the most common methods of challenging a will's validity is on the grounds of undue influence. The test to be applied is different in probate claims than in equity, in other words a much narrower test is applied in probate cases than in many other types of claim and so is often harder to prove. As the courts will never presume undue influence, the burden is always on the party making the allegation.

The Gorjat dispute relates to a different but similar situation. Although there was no will, there was an allegation that a lifetime gift was made as a result of the exertion of undue influence. The disputed monies were transferred by the deceased into a joint account. The significance of this is that joint accounts normally fall outside of an estate and the rule of survivorship dictates that the surviving account holder automatically inherits the entire amount.

The case highlights the importance of ensuring that, where a gift is likely to be disputed, third parties are made aware of such gifts, their families are kept informed and the donor is assiduous in documenting the reason for making the gift. Although it seems not to have been advanced as a primary claim, the case also raises awareness of mental capacity, which has become an increasingly important issue since the Mental Capacity Act 2005 came into force.

Challenging the validity of either a will or a lifetime gift is an expensive business and there is a risk that the loser will have to pay towards the other side's costs. Unsurprisingly then, the majority of claims are funded privately. There are, however, two other ways in which people who cannot otherwise afford to contest a claim may do so: obtaining after the event insurance against adverse costs orders, or conditional fee agreements, by which the legal representatives share the risk of losing.

The Gorjat case was a classic example of children who felt they had been wronged. Inheritance disputes are by their nature highly emotive and this was no exception. The claimants in this action may feel that a painful legal process has not achieved justice for them, but it is in the interests of justice that there is a very high watermark for proving undue influence, in order to allow the donor absolute freedom.