Inheritance disputes are in the news again

As many as 10,000 people are disputing Wills every year, according to estimates by specialist Solicitors. This is what happened in the recent case of Gowing and others v Ward and another 2024. A disappointed grandfather who was ‘hurt’ that his grandchildren didn’t visit him more often was entitled to leave them just £50 each of his £500,000 fortune.

The background to the case can be summarised as follows:

Frederick Ward died in 2020 at the age of 91. He prepared a Will on 3 August 2011 leaving his estate to his children in equal shares. One of his children, Fred Junior predeceased him and on 28 November 2018 he made a new Will which discounted the late Fred Juniors’ five daughters, and told his Solicitor he was upset they hadn’t visited him after he’d been hospitalised three times with a lung condition.

But after learning they’d been all but disinherited, Fred’s five granddaughters, Carol Gowing, Angela St Marseille, Amanda Higginbotham, Christine Ward and Janet Pett – sued and claimed they were entitled to a third of their late grandfather’s money.

Mr Ward was an elderly gentleman with a number of physical health problems particularly affecting his respiratory system resulting in recurrent chest infections which were treated in hospital. The medical notes paint a picture of a person who was frail.

The claimant’s argument was such that:

i) The 2018 Will is surprising and unexpected. It departs from previous promises and intentions on the part of Mr Ward. The explanation given for the change was irrational and bizarre.

ii) The 2018 Will was created in a careless manner.

iii) Fred was in poor physical and mental health, with poor vision and, in particular, poor hearing.

iv) The defendants were involved in the creation of the 2018 Will, and approved the draft will while Fred was in hospital.

The Chancery Division dismissed the claimants’ challenge to the Will, which he had made in 2018. The court held that the Mr Ward had testamentary capacity when he had made the 2018 Will. He had known and approved it. On a balance of probabilities, he had made the 2018 Will as a free agent and it had not been vitiated by undue influence or fraud.

What is testamentary capacity?

Establishing testamentary capacity is essential in estate planning as it ensures that an individual’s wishes are accurately reflected and legally enforceable. If a person making a Will is later found not to have had testamentary capacity the Will itself will be found to be invalid, resulting in an earlier Will or the intestacy rules dictating how their estate is administered when they die. 

The law in relation to testamentary capacity goes back to the case of Banks v Goodfellow which was decided in 1870.

To establish testamentary capacity a person making a Will must:

1. Be capable of understanding the nature and effect of making a Will;
2. Understand the extent of their Estate;
3. Understand the persons who may have an expectation of benefit from their Estate and those to whom they owe a moral duty; and
4. They must not have a mental illness that influences them to make bequests that they would not otherwise have made.

In order to make a valid Will a testator must have testamentary capacity. The Mental Capacity Act 2005 governs wills executed from 1 April 2007, and is intended to be a codification of the existing law in relation to testamentary capacity.

How is testamentary capacity challenged?

Allegations of Mental Incapacity: one of the primary grounds for challenging testamentary capacity is alleging that the testator lacked the mental capacity to understand the nature and consequences of creating a Will. This may include situations where the testator was suffering from conditions such as dementia, Alzheimer’s disease, or other mental illnesses at the time of making the Will.

Undue Influence: another common challenge to testamentary capacity involves allegations of undue influence exerted on the testator by another individual. Undue influence occurs when someone manipulates or pressures the testator into making decisions that do not reflect their true intentions. This can be particularly relevant in cases involving vulnerable or elderly individuals who may be more susceptible to outside influence.

Witness Testimony: witness testimony can also play a crucial role in challenging testamentary capacity. Witnesses who were present at the time the Will was made may provide accounts of the testator’s behaviour, demeanour, and ability to comprehend the contents of the Will. Discrepancies or inconsistencies in witness testimony can be used to challenge the validity of the Will.

How can a Solicitor help?

The case reinforces the importance of the Will file. This should include evidence of the testator’s instructions, detailed attendance notes of their discussions with the Will drafter, and the Will drafter’s conclusions as to their testamentary capacity. These attendance notes can be invaluable to any Court case in defending a claim by anyone who wishes to challenge the Will.

The case also highlights the importance of the ‘golden rule’ – where there is any doubt about a testator’s capacity to make a Will, the opinion of a medical expert should be obtained. That said, whilst reports on a testator’s testamentary capacity are certainly persuasive, they may not always be determinative. The Will file (and the evidence of an independent Solicitor who has prepared a disputed Will) will be invaluable in providing context to a capacity report and allowing a judge to consider capacity holistically.

If you are concerned that your Will may be challenged post death it is vital that you seek independent legal advice. We have a team of professional Solicitors at Pinney Talfourd who specialise in this complex area of law. Please contact the team on 01708 229 444.