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Challenging a Will - what are the legal grounds?

This article explains the legal grounds for contesting a Will.

Wills have been a fruitful source of litigation for many hundreds of years and continue to occupy significant amounts of time of the judiciary. The first general principle of making a Will in England and Wales is that of testamentary freedom, i.e. the person making the Will is at liberty to do what they choose with their estate. This has been modified very significantly over the years but nevertheless when looking at a Will, a Court will start from that basic proposition and assume that the Will itself is valid unless the contrary can be shown.

It is plainly a big subject but in general terms one can narrow down to four general areas where a Will might be challenged and these are as follows:

  1. The Will has not been executed properly.
  2. The person making the Will lacked the requisite “testamentary capacity”.
  3. The provisions of the Will are the result of “duress and undue influence”.
  4. The Will fails to make reasonable financial provision for one or more persons.

The Will has not been executed properly

In order for a Will to be valid it has to have been executed properly and follow the various rules set out in the Wills Acts. The essence of that is that the document itself must be signed by the person purporting to make it in the presence of two witnesses who must also sign with their signatures in the presence of each other. There are exceptions even to this rule but broadly speaking if a Will does not bear the signature of the person making it and two witnesses, it is almost certainly going to be invalid. Even if it does bear those essential signatures, the rules still have to have been followed for it to be valid and it is always worth checking the facts before assuming that all is well when sometimes it is not.

Again there are many rules as to what constitutes a signature and in one particularly famous case, it was found that the “My Will by Percy Winterbone” was sufficient for Mr Winterbone’s Will to be valid and this to be treated as his signature.

The person making it lacked Testamentary Capacity

In order to make a Will and indeed to sign on the dotted line on a contract, the person making it has to have testamentary or mental capacity. In other words they need to know what they are doing and understand what the purpose of the document is that they are signing. This is often a source of dispute, as to whether the signatories of the Wills did or did not understand what they were doing at the time the Will was executed. Very often a Will can be completed at a very late stage in someone’s life when it may well be that there are questions as to whether their mental faculties are intact.

Sometimes where there might be doubts about capacity, the solicitor making the Will, will ask for a medical practitioner either to act as a witness or to give a “Capacity Assessment”. If someone is very ill that is a very prudent step to take and whilst it may not avoid arguments afterwards, it will probably determine the result of that argument.

Duress and undue influence

There is a great deal said about duress and undue influence but it is a relatively rare tool used to disprove a Will. Very often particularly between siblings where one sibling has been favoured over another or others, it is felt or believed that the benefiting sibling has exerted such influence over the person making the Will so that the Will itself should be overturned.

The first point to make is that influence per se is not unlawful and does not invalidate a Will. Saying to one’s mother therefore “mum you really ought to leave me most of your estate because my two brothers are immensely wealthy” is not unlawful. The point at which it becomes unlawful is when the person making the Will is not exercising their own free will and it can be shown and proved that they have been coerced into changing what they would otherwise have done and again their own free will. This can be formidably difficult to prove almost to the point that it rarely came up in cases. However in recent years this ground has become a little more popular in matters where duress can be inferred from the circumstances or the person benefitting from the Will is someone who either had a particular duty to the Deceased, or may even have drafted the Will themselves. Therefore in some circumstances duress can be assumed and it is then for the person seeking to prove the Will to disprove duress rather than for the challenger actually to prove it. However, it is worth re-emphasising that this is not an easy route to follow unless there is direct and compelling evidence.

Lack of reasonable financial provision

This was introduced by the Inheritance (Provision for Family and Dependents) Act 1975 and does not of itself invalidate a Will. However, where a spouse or child of the Deceased or partner or even merely a dependent person can show that they had particular dependence on the Deceased and are in particularly necessitous circumstances, a Court may conclude that it would be unreasonable for the maker of the Will to have left them nothing or an insufficient amount to cater for their needs assuming there was sufficient in the estate to do so. This is another area which is often the subject of litigation and a recent case considered by the Supreme Court set out basic perimeters that may be adopted by Courts when considering such a claim. The general assumption that an adult child who is reasonably solvent will have little or no chance of bringing such a claim still holds true to a large extent.

Where though there is particular financial need such claims are common and frequently successful.

Other examples of successful cases here are where specific promises were made to adult children upon which they have placed reliance in their lives and the most typical of those being where a child has worked throughout their adult life on the parent’s farm in reliance on a promises that they would inherit the farm in due course only to find that that was not the case.

Taking advice

It is a sad fact that litigation about estates can make family members bitterly resentful of each other and sometimes result in litigation that goes on far too long at far too much expense to the detriment of all concerned.

I have sometimes said to a client “I don’t know who your mother wanted her money to go to but I am quite sure it wasn’t me!” Pragmatism and taking early advice, is key to addressing disputes such as this albeit there are occasions when claims against estates lack merit altogether and should be challenged accordingly.

For further advice on contesting a Will, please contact our Dispute Resolution Team. For advice on making a valid Will, please contact a member of our Wills, Tax & Estate Administration team. Girlings has offices in Ashford, Canterbury and Herne Bay.

Before relying on this commentary please read the Reliance on information posted section in our Terms of Website Use in our Legal section. Please note that specialist advice should be taken in relation to any specific queries and the information above is provided for general information purposes only.


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Lesley Rushton

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