Sue Jackson, Trainee Solicitor
Email Wills team
The recent reported challenge to the Will of Malcolm McLaren, the creator of the Sex Pistols, highlights the need to avoid challenges by family members and others by ensuring the Will is made correctly.
McLaren died of mesothelioma, a rare form of cancer, in Switzerland in April 2010. He was just 64. He reportedly had a Will drawn up just before his death, leaving everything to his girlfriend of 12 years, Young Kim and specifically excluding his son. McLaren is estimated to have had assets worth around £1 million, plus homes in Paris and New York.
Joe Corre, McLaren’s son he had with Vivienne Westwood, is challenging the validity of this Will on the basis that his father was too ill and lacked the mental capacity at the time to make a valid Will. This was the first Will that McLaren made, so if his son can show that the Will is invalid then McLaren will be said to have died intestate. Under the intestacy rules, his estate will go to his son rather than his girlfriend, Young Kim. Joe Corre, himself, is a multi-millionaire, having founded the Agent Provocateur lingerie business, selling it 3 years ago for around £60 million.
Under English law, when a person makes a Will, he or she must have the mental capacity to do so. This means that the person must understand what they are doing and what he or she is giving away in the Will. The Mental Capacity Act 2005 (‘MCA’) sets out the test for capacity and whilst it is not directly concerned with the execution of Wills, it provides a useful guideline for how the courts might go about determining whether someone had the mental capacity at the time to make a valid Will.
The MCA also gives guidelines on whether a person is able to make a decision. The person must be able to:
- Understand the information relevant to the decision
- Be able to retain that information, even if only for a short period
- To use or weight that information as part of the process of making the decision
- To communicate his decision (whether by talking, using sign language or any other means).
Deciding the capacity of someone who is alive is complex. Once they are dead it becomes more so. This often leads to uncertainty and court battles. If there is any doubt, the best practice is to have a doctor assess capacity before making the Will.
McLaren’s son is also said to be challenging the Will on the basis that it was not signed in the correct manner. Swiss law (where McLaren made the Will and died) differs from English law. Under English law, a Will must comply with section 9 of the Wills Act 1837. This says that the person making the Will must sign it at the end in the presence of two or more witnesses. The witnesses must be present at the same time and sign the Will in the presence of the person making the Will.
The Will may also be challenged under the Inheritance (Provision for Family and Dependants) Act 1975. Those entitled to make a claim under this Act are wide ranging and includes not just family members, but persons who received financial assistance from the deceased. The crucial question is whether or not the Will failed to make reasonable financial provision for the person making the claim, according to the standard applicable to that applicant. This will depend on who the claimant is and their relationship to the deceased. Ordinarily an independent child with no financial needs would not be successful, unless there was some strong moral claim. Unlike in many foreign countries, there is a basic rule in English law that you can leave your money to whoever you choose. Hence, it is unlikely that McLaren’s Will is unreasonable.
Malcolm McLaren’s Will and the challenge by his son highlights the fact that, where there is a strong sense of grievance, those close to the deceased will often look for a way to challenge a Will. Money is often a secondary issue and people are primarily looking for an acknowledgement of their position. Hence many claims are settled in mediation and do not go all the way to court. This is the likely outcome of the McLaren case.
For further information email Christopher McNeill or contact any member of the Contentious Probate team if you have a query about a Will.
