The right of a convicted offender to live in the house left to him by the mother of one of his victims could potentially have been removed by making a Statutory Will.
When Irma Barnett left a life interest in property to her cohabitant, Arthur Hepple, she could not have foreseen the grief that would cause her daughter, Kirsty Easthope. After Barnett’s death in 2013, Hepple was convicted of sexually assaulting Easthorpe, but a judge at Leeds County Court upheld his right to live in the property when he was subsequently released from prison.
Barnett drafted her will in 2000, leaving the family home to Easthorpe and granting Hepple a life interest, allowing him to reside at the property until his death. Barnett was diagnosed with dementia in 2003 and Hepple began to abuse Easthorpe shortly afterwards. Sadly, Easthorpe did not report the abuse until after her mother died so there was no chance to make amends while she was alive, which may have been possible if Hepple had been convicted. This is because, although Barnett would not have been able to amend her will if she lacked testamentary capacity to do so, in theory it should have been possible for Easthorpe to apply to the Court of Protection (COP) for a Statutory Will – a will made by the COP on behalf of someone who lacks testamentary capacity if it can be proven that it is in their best interests to do so. Arguably it would be in the best interests of a mother for their daughter’s convicted abuser not to benefit from their will[1].
However, this did not happen and the estate was administered on the basis of Barnett’s 2000 will, despite Hepple being convicted of sexually assaulting Easthorpe and given a custodial sentence for assaults on another woman and her child. While Hepple was serving his sentence, Easthorpe rented the property to tenants and, on his release, offered him alternative accommodation, which he refused and, instead, initiated proceedings against her.
At the conclusion of the matter, not only did Easthorpe, 52, suffer the hurt of having to grant Hepple access to the property, but she was also out of pocket to the tune of around £100,000, including paying Hepple £35,000 in damages, around £25,000 in his legal costs and her own fees of £40,000. She has also been required to evict the tenants and to furnish the property at her own expense, before Hepple, 83, moves back in.
Testamentary freedom – the right to leave your estate to whoever you choose – is the cornerstone of succession law in England and Wales. Under the law, an individual has the freedom to choose who will benefit from their Will. It is possible to change a will after someone has died by agreeing a deed of variation, but this requires the agreement of all the beneficiaries, which in this case would include Hepple and so not be suitable.
While the sexual crimes that Hepple was convicted of committing were deplorable, they were not pertinent to the issue of whether or not he had the right to reside in the property until his death. The fact that Barnett had left him a lifetime interest was sufficient for the judge to rule that Easthope was not entitled to bar him from residing in the property, which has left her facing a hefty legal bill, as well as the pain of having her assailant living in the house. As well as a sad story on how legal and moral rights do not always align, this is also an example of the benefits of statutory wills. If you are thinking, can the will of someone who lacks capacity be changed? The answer is, potentially, yes, if it is in their best interests.
[1] Subject to any claim that could be raised under the Inheritance (Provision for Family and Dependants) Act 1975, which gives the Court the power to make provision or improved provision for a disappointed applicant who has been overlooked or under-provided for by the will or intestacy, if the Court considers it reasonable in all the circumstances to do so.
Contact our Contentious Probate Solicitor
While this is an extreme case, many Wills do become contentious and, if you are concerned that your Will could be challenged, careful estate planning is essential. Where a person loses capacity some time before their death, the circumstances of beneficiaries can change before they come to inherit, in which case it could be worth considering applying for a statutory will. Whatever the value of your estate, there are many elements to be considered when writing a Will, and particular care needs to be taken if family circumstances or your financial arrangements are complicated.
Rachel Waller is a Partner and head of Bishop and Sewell’s Contentious Probate and Trusts / Court of Protection team. If you need advice or assistance on capacity issues, statutory wills, or more general court of protection or probate disputes, please contact Rachel on 020 7091 2706 or email: contentiousprobate@bishopandsewell.co.uk
The above is accurate as at 24 January 2023. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
