What are the grounds for challenging a Will?

There are several ways that the validity of a Will can be challenged. Any challenge to a Will would be by a person who stands to benefit from the deceased’s estate if they succeed in their claim. For instance they may benefit under an earlier Will which would come back into existence. If there is no earlier Will a successful challenge would result in the rules of intestacy applying.

If deciding to challenge a Will you should always consider the merits of a successful claim and be confident that the outcome and result would produce a better result than the existing Will.

Requirements of a valid Will

To be valid a Will must comply with Section 9 of the Will Act 1837:

• Be in writing and signed by the person making it (testator), or by a person in his presence and at his direction.
• It must be intended that the testator’s signature was to give effect to the Will.
• With the testator’s signature being made in the presence of 2 or more witnesses or present at the same time and who sign the Will in the presence of the testator.

There is no statutory requirement for the date of execution to be on the face of the Will, but it should be included to avoid uncertainty.

If the Will has been properly executed and the physical condition at time of death gives no reason to suspect there may have been any attempt to revoke it, the Will is presumed to be valid.

Grounds to challenge a Will

1. The general rule is the testator must have capacity at the time of making the Will. Supervening incapacity will not revoke the Will if at the time instructions were given the testator was of sound understanding and later executes the Will knowing that is what they earlier intended, the Court may find in favour of the Will Parker -v- Felgate (1883).

2. The test for capacity can be found in Banks -v- Goodfellow (1870) LR QB 549.The testator must:

• Understand the nature of the Will and its affect.
• Understand the extent of the property of which he is disposing.
• Be able to comprehend and appreciate the claims to which he ought to give effect.
• That no disorder of the mind “shall poison his affections, pervert his sense of right or pervert the exercise of his natural faculties – that no insane delusion shall influence his Will in disposing of his property and bring about a disposal of it which if the mind had been sound, would not have been made.”

3. For Wills made after 1 April 2007 Sections 1 to 3 of The Mental Capacity Act 2005 shall be considered.A person must be assumed to have capacity and not be treated as unable to make decisions unless all practical steps to help them have been taken without success. The person is not to be treated as unable to make a decision merely because he makes an unwise decision.

4. The person challenging the Will has the burden of proof, but this burden is highly mobile. Having raised sufficient challenge, the Will suspicion burden will shift to the person who wishes to prove the Will by showing that it is:

• Formally valid.
• Rational on its face.

It is also possible to memorialise an account on death. This enables family and friends access to the account so they can leave a message. It is common for people to include funeral wishes in their Will, but most will not have considered what message if any, can be posted on social media.

Knowledge and approval

It is for the person proving the Will to satisfy the Court that the document is the last Will of a free and capable testator. In some cases affirmative proof of knowledge and approval by the testator to the document is required. Gill -v- Woodall and Others (2010) EWCA CIV 1430, “Where a party writes or prepares a Will under which they take a benefit, this will “excite the suspicion of the Court”: In other words, the Court will be vigilant in examining the evidence in support of the instrument.It is unlikely to pronounce it as valid unless that suspicion is removed…”.

Circumstances where concern of knowledge and approval have been raised include:

• Deafness or speech impediment
• Visually impaired
• Learning difficulties
• Particular frailty or vulnerability

Undue influence

Where a testator executed an otherwise valid Will because of undue influence or coercion placed upon them, the person who alleges undue influence has the burden of proof, and strong facts and evidence would need to be produced to the Court.

It must be shown that the making of the Will was not a free and voluntary action and there was coercion Wingrove -v- Wingrove (1885).

The Courts look at coercion as being sufficient pressure exerted over the testator so as to overpower the volition of the individual – Hall -v- Hall (1868) 1 P&D 481.

Examples of undue influence would be:

• Physical force, violence, or threatened violence.
• Withholding or withdrawal of care.

Persuasion and advice would not fall foul of undue influence Re: Devillebichot (2013) EWHC 2867 persuasion was found to exist but coercion not present and the Will was upheld.

However where a nagging family ultimately created the terms of the Will the Court dealt with the matter by way of want of knowledge and approval rather than undue influence, Bennett -v- Petit (2013) EWHC 955.If you want to protect yourself should you be unable to manage your affairs during your lifetime (such as through loss of capacity) a Lasting Power of Attorney may be a perfect solution to cover you too.

Fraud and forgery

Strong evidence will be required to satisfy the Court that a testamentary document is a forgery. More usually the opinion of a handwriting expert on the testator’s signature would be obtained at an early stage.

What happens if I decide to contest a Will?

Caveats.

If it appears there is reasonable cause to doubt the validity of the last Will, a caveat it usually issued as a preliminary step. This prevents the executors from obtaining a Grant and distributing the estate.

Larke -v- Nugus enquiries.

Additional evidence will be required when challenging the Will. Enquiries of the Will writer can be raised as part of preliminary investigations to establish the circumstances in which the testator prepared and executed the Will.

When to challenge a Will

Most claims against personal estates of a deceased may be brought up to 12 years from the date of death.This does not apply to rectification of a Will or a claim under the Inheritance (provision for Family and Dependants) Act 1975, both of which have 6 months limitation period from the date of the Grant extraction.

It is always recommended to act promptly when conducting enquiries following death.

Costs

In the case of estates of relatively small financial value, the costs of disputing a Will can be prohibitive.

A vast majority of cases settle before proceedings are issued and frequently before trial.

It is vital to consider the impact costs may have before embarking on a claim. Many parties to a dispute have begun a probate claim in the mistaken belief that all the legal costs will automatically be paid out of the estate. In England litigation and costs rules are generally the successful party is entitled to the recovery of their costs against the unsuccessful party.

More information

If you wish to discuss your Will please contact our Private Client team here. To discuss a disputed Will please contact our contested probate team here.

This article was written by Kerry Hull, Senior Associate in the Contested Wills & Probate Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of April 2021.