Private Lives - More and more people challenging wills


03 April 2019

With a quarter of all adults prepared to challenge a will, what grounds do you have to advance a claim against an estate? 

A recent survey commissioned by Direct Line Insurance has revealed that a quarter of British adults are willing to challenge a relative’s will in court, with this figure rising to as high as 31% in Southampton and London, and 29% in Norwich.

Grounds for challenging a will

A will is assumed to be valid if it is: 

  • in writing
  • signed by the person making the will (the testator), or another person 
  • in the testator’s presence and at their direction
  • signed, or their signature acknowledged, by the testator in the presence 
  • of two or more independent witnesses present at the same time; and
  • signed by two witnesses in the presence of the testator (but not necessarily at the same time).

You can, however, challenge the validity of a will on one or more of the following grounds: 

Testamentary capacity

The testator must have understood:

  • the nature of their acts and their effects i.e. that they were giving both 
  • instructions for and executing a will
  • the extent of the property of which they were disposing; and
  • the claims to which they ought to have effect, for example if there are 
  • any moral claims they should have considered. 

The courts have recommended that if there are concerns about the testator’s capacity when making the will, a capacity assessment should be obtained. However, if this was not carried out at the time the will was made, a retrospective capacity assessment will likely become necessary to assist with the resolution of the dispute. The deceased’s medical records will, therefore, likely need to be obtained. 

Knowledge and approval

It can be alleged that the testator did not know, understand or approve the contents of the will. This claim is often advanced in conjunction with an allegation that the deceased lacked testamentary capacity.

Undue influence

One of the most common allegations is that the testator was influenced by a third party to make a will in the terms they did. However, whilst common, it is very difficult to prove as the claimant must demonstrate coercion; mere persuasion is not sufficient. 

Fraudulent calumny

Often argued alongside undue influence, fraudulent calumny involves the making of false and defamatory statements about someone to damage their reputation and effectively poison the testator’s mind against them, causing the testator to change their testamentary wishes. 

Fraud

There could be concerns, for example, as to whether the will was actually signed by the testator, or whether it has been altered after execution by a third party.

Often one or more of the above allegations are raised at the same time.

Before a claim is advanced it is essential to establish what the effect of a successful claim would be. If the deceased made an earlier will which has not been revoked other than by the will being challenged, that will becomes the last known will and testament of the deceased. If there are no earlier valid wills, the deceased will have died intestate. If the claimant does not benefit under the earlier will/intestacy to a greater extent than the will being challenged, there is unlikely to be merit in pursuing the claim.  

Other claims

Whilst not a challenge to the validity of the will itself, certain categories of people can also seek financial provision from an estate if it is considered they have not been reasonably provided for. Such claims are advanced pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 and must be pursued within six months of a Grant of Probate/Letters of Administration being obtained; potential claimants are, therefore, encouraged to seek advice quickly.

Eligible claimants include (but are not limited to) spouses, cohabitees (provided certain criteria are met), children (including adult children) and those being maintained by the deceased. In summary, the question to be assessed is whether the will (or intestacy) reasonably provides for the claimant and, if not, what it would be reasonable in all the circumstances for them to receive. Being an eligible claimant does not, however, necessarily mean the claim will succeed and cases of this nature turn on their specific facts. 

Why are will disputes on the rise?

A number of factors appear to have contributed to the increase in estate disputes. Second families (and beyond) can result in conflict; the testator may find it difficult to provide for everyone and animosity in the family can sadly come to the forefront following a bereavement. Estates are valuable, typically including at least one property, and general awareness of claims and the court process appears to have increased. 

What should you do if you have concerns over the validity of a will?

If you have concerns, it is advisable to obtain legal advice at an early stage as there are steps that can be taken to obtain information and also prevent the estate being administered until the matter is resolved. For example, a caveat can be lodged at the Probate Registry to prevent a Grant of Probate being obtained, a formal request can be made to the will drafter for information about the creation of the will and medical records can be sought. The burden of proof also varies between the grounds listed earlier, and your legal advisors may be able to apply some pressure to the purported executor at an early stage.

If you would like any advice in relation to estate disputes, including challenges to the validity of a will or claims pursuant to the Inheritance (Provision for Family and Dependants) Act 1975, please do not hesitate to contact Marie McMahon or a member of our Contentious Trust and Probate Team.

This article is from the spring 2019 issue of Private Lives, our newsletter covering the key legal and tax issues that individuals face. To download the latest issue, please visit the newsletter section of our website. Law covered as at April 2019.

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