You cannot just contest a Will because you are unhappy with the division of assets; it’s up to the deceased how they leave their estate. A Will can generally only be challenged if it is invalid for some reason

There are important formal requirements when it comes to preparing, witnessing and executing (signing) a Will – check our post for Will writing tips. If you do not observe these requirements, your Will may be considered invalid. Other grounds upon which the validity of a Will may be challenged include testamentary incapacity or undue influence.

Consideration should also be given as to whether or not there is a different basis of claim, perhaps under the Inheritance (provision for Family and Dependants) Act 1975, or perhaps there is a promissory estoppel argument or a possible claim under the Trusts of Land and Appointment of Trustees
Act 1996
. You can read more about what are called ToLATA claims or joint property ownership disputes.

Contesting a Will due to testamentary capacity

For a Will to be valid, the testator must be able to understand what they are doing at the time the Will is executed.

A lack of testamentary capacity broadly means that the testator (the person making the Will) did not at the time understand what it was they were doing or what the implications of their Will were. This is why if someone loses capacity (for example, due to illness, age, or infirmity), they cannot legally make a Will.

In such circumstances, it may be necessary for a close relative who understands what the individual wants for their estate to consider having themselves appointed as a deputy for that person and for an application for a statutory Will to be made.

In terms of estate planning generally, and not just when preparing a Will, it is important to think about what happens if you do lose mental capacity. Preparing a Will is often one of those “I’ll do that later” tasks and it is often at this moment that someone is asked about – and starts to think about – what happens if they lose mental capacity before they die.

This is one of the reasons that it is worthwhile having a Lasting Power of Attorney (LPA). An LPA names a trusted individual (or individuals) to assist you in your welfare and financial needs.

Contesting a Will due to undue influence

We are all influenced by each other to some extent.

It may be as a result of mutual love and affection or a sense of duty that someone decides to leave their estate to a particular beneficiary; it could be as a result of a dislike for someone that they do not; or it may be that because of conversations or past dealings with someone that they are included in or excluded from a Will.

However, when that influence causes a testator (the person making a Will) to make Will they would not ordinarily have made, that the law can step in.

Clearly, threats of violence or blackmail, for example, used to convince someone to make a particular provision in their Will would almost certainly be considered to be undue influence, rending the Will invalid. In practice, however, the issue is almost always more nuanced.

For example, it is difficult to assess if an overly-controlling spouse has dictated particular terms. The testator may wish to appease their partner by providing for the people that their partner suggests – but at what point can it be said that the testator made their decision as a result of undue influence, as opposed to merely taking on board suggestions and making their own reasoned and informed decision?

This is why when you go to a solicitor to make a Will, they will (or should – there are negligence cases out there where a solicitor has failed to do this) ask and consider with you the extent to which the decisions are your own and that you are not being subjected to undue influence from third parties.

More recent cases challenging the validity of Wills

The burden of proof is generally on the claimant to “excite the Court’s suspicions” and to prove “on the balance of probabilities” that the Will is not valid because the deceased didn’t have the mental capacity to understand it or was subject to undue influence when they executed it.

Disappointed beneficiary: Barnaby v Johnson (2019)

The disappointed beneficiary claimant in this case was criticised for pursuing a hopeless claim. There has recently been growing judicial consternation at claimants pursuing hopeless cases.

A claimant may challenge the validity of a Will out of a sense of pride, duty or greed, but whatever the case, a claimant would be well-advised to consider the position objectively and commercially in the first instance, and put any emotional motivations to one side.

In the case of Barnaby v Johnson, Mrs Bascoe died aged 97 in 2015. She left a Will made in 2005 in which she left £100 to her daughter, Ms Johnson, and the residue to her son, Mr Barnaby. A solicitor had drafted her Will.

Accompanying the Will was a note explaining the reasons for her lack of provision for Ms Johnson, which she said were a result of her lack of care and concern for her mother, along with rudeness and unpleasant treatment exhibited towards her by Ms Johnson.

Her daughter sought to challenge the Will on all possible grounds that she could, including her mother’s ‘lack of testamentary capacity’, ‘want of knowledge and approval’ (i.e. the necessary formalities when it came to executing the Will were not observed), ‘undue influence’ and ‘forgery’. She was unsuccessful on all of these grounds.

In summing up, the Judge concluded that: 

The 2005 Will is rational and [having been validly executed] the strong presumptions in favour of validity are present. Miss Johnson has come nowhere near establishing the basis for any proper challenge; there is no documentary evidence which supports her and in particular nothing from independent third parties, especially in contemporaneous documentary form. Her evidence has been contradictory, self-serving and deliberately misleading. That of her witnesses does not assist her in any respect. I have no hesitation in finding for the Claimants.

When you go to a solicitor to write your Will, it is always worthwhile to provide an explanation of why you are making particular provisions for particular beneficiaries, as Mrs Bascoe did. It doesn’t necessarily have to be included in the wording of the Will itself, but a note or side letter can be extremely useful evidence later on, in the event that there is a dispute over the validity of the Will.

As a client, you should not expect a solicitor to be able to consider whether or not the provisions you make are reasonable, nor the motivation behind them. They may discuss with you why you are making particular provision which appears unusual, but if you do not explain to your solicitor that there are individuals who may be unhappy about a particular provision in the Will, the simple pre-emptive step of preparing a side letter or note for the file, which can be very important evidence later, should not be overlooked.

It is not uncommon for the person making the sort of allegations that Ms Johnson did, to argue that there are several grounds to challenge the validity of the Will; there is often a degree of overlap when it comes to the facts and legal principles to apply. However, this can increase the risk of failure.

For example, in this case, Ms Johnson tried to argue both that Mr Barnaby had forced their mother to make the Will (undue influence) and on the other hand that the signature to it was not that of her mother (it was forged – a lack of due execution, one of the formalities in making a Will). It is hard to reconcile the two arguments. Either the Will was signed by Mrs Bascoe, or it was not.

Those looking to dispute a Will might generally be better advised to focus on one or two grounds that are likely to have the best prospects of success and are not contradictory.

This case also serves as a salutary reminder that a Will cannot be challenged simply based on perceived unfairness, inequality between siblings (or other beneficiaries), or just because the terms are not to the liking of a disappointed beneficiary. The Court will require substantial evidence to find that a Will is invalid, and without this, there is a presumption that it is valid.

Ms Johnson brought the claim herself without legal representation. The Court will not automatically be lenient in such cases, and it will apply the law and the procedural consequences of losing the claim will hold (which normally involve the losing party paying a proportion of the winning party’s legal costs). There are exceptions, such as when the dispute arises entirely as a result of the conduct of the testator, in which case the legal costs of the parties may be met by the estate itself.

The Golden Rule and testamentary incapacity: Goss-Custard v Templeman & Ors (2020)

Lord Templeman, who passed away in 2014, was a well-renowned judge who was particularly known for his advent of the “Golden Rule” (in Kenward v Adams (1975)).

The Golden Rule is the need to consider the testamentary capacity of the testator (the person making the Will). Ironically, after he died, there was a dispute over his own Will. The root of the argument was whether Lord Templeman had testamentary capacity when he made his Will in 2008. Lord Templeman had started to experience memory problems from around 2006, but he was never tested for, and therefore never diagnosed with, any medical problems which could be attributed to this. His condition deteriorated over the remaining years of his life.

Expert evidence suggested that, despite the anecdotal evidence that Lord Templeman may have struggled with memory issues around the time he made his Will, his short-term memory problems did not mean he did not have sufficient testamentary capacity.  

Lord Templeman’s Will was professionally prepared, and his solicitor recorded that he had no concerns about his client’s capacity. The Golden Rule was, however, not followed. Lord Templeman stated that the Golden Rule was that:

the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings

The family sought to argue the fact that Lord Templeman had not ensured his own rule was followed when he made his new will at age 88, was evidence of his own lack of capacity.

This was given short shrift by the Judge, who confirmed that a failure to follow the rule is not automatic evidence of a lack of capacity. He said that people who are able to give advice to others do not always need to follow it themselves, particularly in cases where they do not consider that they need to.

This decision follows an existing line of legal authorities and cases, which broadly say that just because someone has a condition that has an adverse impact on their memory or mental acuity does not automatically mean that the Will is invalid or was not understood when it was executed.

Lack of testamentary capacity: Clitheroe v Bond (2020)

Jean Clitheroe had three children, Debra, Susan and John. In 2009, Debra died of cancer. Jean was deeply affected by Debra’s illness and death and, “took to her bed”, where she remained bedridden until her death in 2017.

Jean made two Wills in similar terms, one in 2010 and another in 2013. In both, John inherited the residuary estate, but Susan did not receive any significant benefit under the terms of either of these Wills. Jean explained to her solicitor that the reason for her decision regarding Susan’s inheritance was that she considered Susan to be a shopaholic and a spendthrift; she felt Susan would squander any inheritance.

Susan sought to claim that her mother lacked testamentary capacity as she was suffering from a complex grief reaction due to Debra’s illness and untimely death in 2009, causing her to form insane delusions regarding Susan. 

The Court applied the principle recognised in Key v Key (2010) that an affective disorder, such as a complex grief reaction, can impair a person’s capacity. The Court also considered the meaning of an “insane delusion” in relation to the test laid down in Banks v Goodfellow (1870) (the test which establishes how to determine an individual’s testamentary capacity).

The Court held that the 2010 and 2013 Wills were invalid on the basis of a lack of testamentary capacity and that Jean had therefore died intestate (i.e. without a valid Will). This meant that Jean’s estate would be divided equally between John and Susan, as her two surviving children. 

This is an interesting case for both contentious probate solicitors and private client solicitors alike, as it is a reminder of the importance of evidence when a Will is being prepared.

In this case, the Will writing solicitor had not attempted to take instructions from Jean in person, and John had been involved throughout the process and knew of the content of the Wills. No professional opinion had been obtained as to Jean’s testamentary capacity. The Courts were critical of the Will drafter (who was probably subjected to subsequent allegations of negligence).

Practitioners have to be particularly careful when clients have recently suffered a bereavement or have even the slightest concern as to their client’s ability to understand the nature and contents of their Will and err on the side of caution. A medical opinion about the testamentary capacity of the client is rarely something that can simply be disregarded in such circumstances.

Whilst outside the scope of this blog, there are a growing number of reported negligence cases against Will writers and sometimes pursuing such a claim is something that the aggrieved beneficiary should be considering and which we at Cunningtons can also assist with.

Personal Representatives not doing their job properly?

Sometimes, the argument is not about whether or not a Will is valid or if someone should have received more from the estate to meet their financial needs.

It is not uncommon for beneficiaries, co-executors (when there is a Will) or co-administrators (when there is no Will) to allege that the person administering the estate is not doing what they are supposed to do, or not doing it well enough. Someone administering an estate is generically called the “personal representative”.

Sometimes, a person may not be entitled to administer someone’s estate but does so anyway, either knowing or not knowing this. Such a person is referred to as an “executor de son tort”. Such individuals can also be held liable for the losses to the estate.

A personal representative or executor of an estate has a duty to the beneficiaries of that estate as a whole:

  • to act in their best interests,
  • to exercise their duties with reasonable skill and care, and
  • to administer the estate within a reasonable time frame after the deceased’s death.

Broadly, there is a concept called the “the executor’s year”, which suggests that 12 months from the date of death is a reasonable period of time to fully administer the estate.

However, there can be a number of reasons why this period of time may not be appropriate and may no longer be required.

If a personal representative fails in their duties by mismanaging the deceased’s estate and causing a loss to it, this can give rise to a basis of a claim. Such acts could be deliberate, reckless or simply as a result of the personal representative’s own personal limitations and negligence.

Cases where personal representatives could expect to be held liable to losses to the
deceased’s estate include:

  • Selling property below its market value, often because of the failure to obtain
    proper advice or because of a delay in selling assets which are diminishing in
  • Investing assets badly or contrary to the terms of any Will, so causing a loss;
  • Making a personal gain by acquiring assets or using them for their own purposes;
  • Preferring one beneficiary over another when the personal representative exercises their discretion;
  • Failing to pay the debts of the deceased;
  • Improperly delegating their functions; and
  • Charging the estate improperly for their work.

Get in touch with us – Cunningtons is here to help

This area of law can be complicated and there can be tight deadlines to observe. The failure to meet these deadlines can result in claims becoming “statute barred” and no longer capable of being pursued. It is therefore generally advisable to approach a solicitor as soon as possible to consider the matter with you.

You may feel that it is too early or that you are not in the right frame of mind or place to approach a solicitor so soon after someone passes away. We are used to dealing with clients at such a sensitive time and when emotions are running high, and of course the advice you are given is confidential, so no one else need know of your approach until the time is right (which we can discuss with you).

Cunningtons will strive to ensure that your claim goes as smoothly as possible, endeavour to achieve a satisfactory and cost-effective resolution of matters as quickly as we can, and is always mindful of the sensitive and emotional nature of the issue.

Whether you are proposing to pursue a claim or are obliged to defend allegations regarding a Will or an estate, our experienced and friendly staff are here to help.

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