One of the fundamental principles of English law is that a person is free to draw up a Will that sets out how they wish to distribute their property. How and to whom that distribution is made is their choice alone and should be free from the interference of the Courts.
However, Wills are sometimes contested. In February 2022, the Daily Mail reported on the case of siblings who fought a bitter court battle over the £100 million fortune their father left when he died. The father had drafted a Will in 2012 which divided his fortune between the siblings and other family members. After the father’s death, a solicitor sent the son a copy of a new Will in which a majority of the estate had been left to his sister. In February, following a three-week trial involving 47 witnesses, a judge found that the 'very materialistic' daughter probably 'engineered' the Will and had failed to show that her father knew and approved of its contents.
The media report on this case shows how contentious Will disputes can be. In this article, we examine the most common reasons for a Will to be challenged, starting with a lack of testamentary capacity.
Lack of testamentary capacity
With people living longer and cases of dementia and/or frailty affecting so many, a lack of testamentary capacity has become one of the most common reasons for challenging a Will.
The test for testamentary capacity, although ancient, (it was created during the reign of Queen Victoria), is contained in Banks v Goodfellow (1870) LR 5 QB 549. To be considered of ‘sound mind’, the Testator must, when making the Will:
- Comprehend that they are making a Will.
- Understand the effect of the contents of the Will.
- Know the extent, nature, and value of their estate.
- Recognise the consequences of including and excluding certain people in/from the Will.
- Be free from any “disorder of mind” which may affect their comprehension.
The recent case of Re Clitheroe (Deceased) [2021] EWHC 1102 (Ch) upheld the Banks v Goodfellow test.
There is a presumption that if a Will has been executed and attested correctly, the Testator was of sound mind. Furthermore, in England and Wales, if the person making a Will is elderly or has recently been ill, the Will ought to be witnessed or approved by a medical practitioner who is satisfied with the capacity and understanding of the Testator and states this in a written report. This is known as the Golden Rule and is recognised as good practice followed by all respected and regulated Wills and Probate Solicitors.
The Will was not executed correctly
To be legally valid, a Will must fully comply with the elements of section 9 of the Wills Act 1837. If one of the requirements under section 9 is missed, the Will may be challenged on the grounds of “lack of due execution”.
Evidence for lack of due execution must be extremely robust. An example of a successful challenge on this ground was the case of Barrett v Bem and others [2012] EWCA Civ 52, in which the Court of Appeal ruled that a Will signed by the Testator's sister was invalid as there was deficient evidence to support the conclusion of the High Court that the Testator asked his sister to sign. Some form of verbal or written communication would be required to satisfy section 9 (a).
Undue influence
Undue influence is where a third-party puts pressure on the Testator to change their Will or draft a Will that contains different decisions than those they would have made had the pressure not been applied. The pressure must be physical, verbal or psychological and overwhelm the free will of the Testator.
There is rarely any direct proof that undue influence has occurred. Therefore, the Court must examine all the circumstances of the case including the:
- Vulnerability of the Testator.
- Relationship between the person being accused of exerting undue influence and the Testator.
- Inexplicable distribution of the Testator’s estate under the Will.
Sir Gorell Barnes P stated in Spiers v English [1907] 1 P 122:
“… in my view a plea of undue influence ought never to be put forward unless the party who pleads it has reasonable grounds upon which to support it.”
Given Sir Gorell’s opinion and the fact that undue influence is never presumed, it is vital to collate as much evidence related to the aforementioned circumstances as possible.
Final words
Challenging a Will is a serious matter and without the advice and representation of a Solicitor experienced in such cases, legal bills can quickly mount up and family relationships disintegrate. Take the time to select a Solicitor who can demonstrate the necessary sensitivity, knowledge, and tenaciousness required in these highly specialised cases.
To speak to our Contentious Wills and Probate Solicitor; David Richards, please email davidrichards@brethertons.co.uk or phone 01295 270999
