If a will does not include the true intentions of the person making the will, or if the will has not been executed correctly, it may be invalid and can therefore be contested. Our guide takes you through the grounds for contesting a will.
Lack of testamentary capacity
One of the grounds for challenging the validity of a will is that the person who made the will ("the testator") did not have the relevant mental capacity to understand his actions.
Testamentary capacity
A person making a will must be of "sound mind, memory and understanding" when making a will. The law relating to whether a person has sufficient mental capacity to understand the content of his will was established in the case of Banks v Goodfellow [1869-70] which stated that the testator must:
- understand the nature of the act and its effects
- understand the extent of the property of which he/she is disposing
- be able to comprehend and appreciate the claims to which he/she ought to give effect
- and must not be effected by any "disorder of the mind" that shall "poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties and that no insane delusion shall influence his will in disposing of this property and bring about a disposal of it which, if the mind had been sound, would not be made".
The factors referred to in Banks v Goodfellow are considered in more detail below.
Understand the nature of the act and its effects
The law does not call for a perfectly balanced mind. Just because a person making a will was moved by "frivolous, mean or even bad motives" will not make a will invalid. A person is entitled to disinherit his children for reasons of spite without such wishes being challenged on the grounds of mental capacity. This is obviously subject to the individual having "sound mind, memory and understanding" at the time the will was made. The question as to whether a person has the relevant mental capacity is a factual question which is often determined by medical evidence. However, the evidence of close friends and family is also relevant and a person can be found to be lacking mental capacity based upon their evidence alone.
When contesting a will, problems arise with issues concerning mental capacity where a disease affects the mind over a period of time, e.g. Alzheimer's. In such patients it is often the case that on some days they understand matters and on others their memory is lacking. To succeed with contesting a will, it must be shown at the time the will was executed, the testator did not have the capacity to make a will.
Understand the extent of the property
A testator need only have the capacity to understand the extent of his property. It is not the case that a testator has to have a detailed knowledge of all of his assets/monies. For example if a testator has a broad idea of his assets but is not able to give specifics, it will not be possible to successfully contest a will on the basis of mental capacity. Cases in which the testator did not understand the extent of the property are very rare. Where this specific heading is raised, it is often in support of other matters concerning a testator's capacity.
Comprehend and appreciate the claims to which he/she ought to give effect
If a testator did not consider leaving part of their estate to a close family member or did not consider a claim against the estate, this may be an indication that the person lacked the necessary mental capacity to understand their actions and it may be possible to contest a will. Such claims may include those pursuant to the Inheritance (Provision for Family and Dependents) Act 1975.
Contesting a will: presumption of capacity
Mental capacity will be presumed if the testator left a will which appears to be rational and contains no irregularities.
If, however, having seen the testator's medical records and spoken to close family members, it is established that the testator has a history of mental illness/confusion or memory loss, it will be for those persons seeking to rely on the document to establish capacity (see Vaughan v Vaughan [2005]). For example, if an executor named in such a will is insistent that the will is valid, it will be for the executor to prove that the testator had the necessary testamentary capacity.
Preliminary steps
If you have grounds to suspect that the testator did not have the necessary testamentary capacity to understand the content of their will, it is important to take action and legal advice as soon as possible. You may wish to enter a caveat with the Probate Registry to prevent a Grant of Probate being taken out and the assets of the estate distributed. You can also contact the solicitors who prepared the will and request details regarding the will's preparation and locate the witnesses to the will to find out the circumstances surrounding the execution. Try and obtain the testator's medical records to establish whether the individual was suffering from any illnesses. Even if the medical records are not supportive of a claim concerning mental capacity, if there are witnesses confirming the individual lacked such capacity, it may be possible to contest a will.
Implications
Where a will is successfully disputed and the court confirms the will is invalid, if there is not an earlier valid will, then the testator's estate will be distributed according to the intestacy rules.
Undue influence or coercion
One of the grounds for contesting a will is that the person who made the will (known as the testator) was subjected to undue influence.
Definition of undue influence
Sir J. P. Wilde initially defined undue influence in the case of Hall v Hall [1868] as being "pressure whatever character ... if so exercised to overpower a person's wishes." Sir James Hannen further defined undue influence in the context of executing a will in the case of Wingrove v Wingrove [1885] as being "to be undue influence in the eye of the law there must be – to sum it up in one word – coercion."
Coercion when contesting a will
Coercion may take several different formats. It can cover "physical violence, verbal bullying or simply talking to a sick person who is seriously ill in such a way that that person may be induced for quietness-sake to do anything".
In the case of Edwards v Edwards [2007], the testator was deliberately told incorrect information by one of her children in order to secure an inheritance, which amounted to undue influence, i.e. "deliberate poisoning of a person's mind". The key question to be determined when contesting a will is whether the conduct is such that it overpowers the will of the testator.
The amount of influence required to induce a person of weak mind and ill health to make a will may be considerably less than that necessary to induce a person of strong mind in good health. A "drip drip" approach may be highly effective in sapping the will of a testator.
Different types of influence
In all cases involving undue influence, except those involving a will, there may be a presumption of undue influence where there is a relationship of trust and confidence with the wrong-doer. Such relationships may include parent/child; solicitor/client; and trustee/beneficiary relationships. In these types of cases it will be for the wrong-doer to prove that the complainant entered into the transaction out of his free will.
No presumption of undue influence exists when contesting a will. It must be shown that actual undue influence occurred. In such situations it is for those contesting a will to prove undue influence occurred.
Whilst presumed undue influence has no place in cases involving contested wills, if it can be shown that there is no other hypothesis to explain the actions of the testator, other than undue influence, a judge may then find undue influence occurred (see Edwards v Edwards [2007]).
Suspicious circumstances which do not amount to undue influence
Even though there may be suspicious circumstances surrounding the making of a will, claimants and solicitors should be extremely cautious before contesting a will based on undue influence as the hurdles remain "high". Examples of where a claim for undue influence in contesting a will have been successful are few and far between.
It is easier to list examples which do not amount to undue influence than those which do. Cases which detail questionable conduct but do not amount to coercion include appeals to family ties or affection (1) "I am, your only son"; (2) "I am your best friend"; (3) "Remember all the things I have done for you"; and (4) "I'll end up on the scrap heap". Providing the testator is not over-borne, strong persuasion and heavy family pressures, deliberate concealment and wheedling one's way into the affections of a vulnerable testator do not amount to coercion.
There will only be undue influence if the following statement is answered positively. If the testator were alive would he/she say "this is not my wish but I must do it"? Coercion by its very nature often takes place behind closed doors and the key witness, i.e. the testator, is no longer able to give evidence, thus making it difficult to succeed with a claim for undue influence. If there are suspicious circumstances, it may be easier to succeed with challenging the will on the grounds of " knowledge and approval" or " testamentary capacity".
Implications
Where a will is successfully disputed and the court confirms the will is invalid, if there is not an earlier valid will, then the testator's estate will be distributed according to the intestacy rules.
Lack of knowledge and approval
Where a will has been executed in suspicious circumstances the court must be satisfied that the testator (the person making the will) understood and approved the contents of his will.
In suspicious circumstances, those contesting a will will often raise allegations of undue influence (i.e. the testator was coerced into making the will) or that criminal activity has taken place. It is often difficult to succeed with such arguments, as the burden of proof is high. An alternative, where suspicious circumstances exist, is to raise an argument that the testator did not have the necessary knowledge to understand his/her will and that they did not approve the content. The burden of proof for such cases is far less.
Presumption of knowledge and approval
Where a will has been executed correctly (i.e. the testator has signed the will in the presence of two witnesses who have also signed the will) and the testator had the necessary testamentary capacity, knowledge and approval will be presumed.
However, there are certain circumstances, which are detailed below whereby it must be proved that the testator had the necessary knowledge to understand the content of their will and that they approved the content.
Exceptions to the presumption of knowledge and approval
If the testator is one of the following, the court will require sufficient evidence to prove that the testator understood and approved the content of the will, namely:
- deaf and/or dumb;
- cannot speak or write or is paralysed;
- blind or illiterate; or
- the will is alleged to have been signed by another person for the deceased at his direction.
Circumstances which excite the vigilance and suspicion of the court when contesting a will
In addition to the exceptions above, whilst there is a general presumption of knowledge and approval, if the circumstances surrounding the will being executed raise such suspicion, it will then be for those who believe the will to be valid to call evidence to dispel the suspicions. The greater the suspicion, the greater the burden on the person trying to prove the will to dispel that suspicion. Even if there are suspicious circumstances, if the will is a simple document, it is often easier to prove knowledge and approval.
A classic example of a case in which the last will of the testator was found to be invalid on grounds of knowledge and approval is Vaughan and others v Vaughan [2005]. The judge in this case found that the facts led themselves to being "bristled with suspicious circumstances". Instructions for the will were given by a beneficiary and the testator took no advice in relation to the will. It was suggested that a medical opinion be obtained but this advice was ignored by the beneficiary. The testator did not read over the will at the time it was executed and accordingly the judge found that the testator did not have the necessary knowledge and approval.
In circumstances where part of the will is read over to the testator but not all the will, the rules relating to knowledge and approval may only apply to part of the will.
Implications
Where a will is successfully disputed and the court confirms the will is invalid, if there is not an earlier valid will, then the testator's estate will be distributed according to the intestacy rules.
Wills Act 1837
The first ground to determine whether a will is valid, is to identify whether the will has been completed correctly.
Since the will in effect disposes of the testator's (person making the will) entire property and goods, it has to comply with several requirements in order to be valid. The first requirement being that the testator must be aged at least 18 years when signing the will. In addition, for deaths on or after 1 January 1983, a will must be executed in accordance with Section 9 of the Wills Act 1837 (as amended by Section 17 of the Administration of Justice Act 1982).
Section 9 of the Wills Act 1837
No will is valid unless:
- It is in writing, and signed by the testator, or by some other person in his presence and by his direction.
- It appears that the testator intended by his signature to give effect to the will.
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time.
- Each witness either:
- attests and signs the will; or
- acknowledges his signature, in the presence of the testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary.
The above parts of Section 9 of the Wills Act 1837 are broken down in more detail below.
In writing and signed by the testator (section 9 (i) Wills Act 1837)
It is understood that any form of writing is accepted. Therefore, handwritten, typewritten or a will printed by any form of technology is accepted. No specific material is required and therefore, paper, cloth or almost anything is recognised, providing it can be produced to a Probate Registry. It has even been suggested that a wall or an egg shell would suffice.
In addition, the will needs to be signed by the testator. The purpose of the testator's signature is to authenticate the document and confirm the testator's intention. The testator's signature can be in any form as long as it signifies his intention. A scrawl or the testator's personal stamp or their initial seal have been recognised as being the testator's signature. More recently, the testator's thumb-print was recognised as his signature re Parson [2002].
What if the testator cannot physically sign?
There may be situations where the testator is blind or paralysed which may affect his ability to sign his will. In such circumstances, a will may still be validly executed by another person on behalf of the testator. However, clear evidence is required confirming that the signing was done at the testator's direction and legal advice should be sought.
Intention of the testator (section 9 (2) Wills Act 1837)
The signature of the testator is evidence of his intention. For deaths before 1 January 1983, a will had to be signed "at the foot of each page and at the end of the will". However, this is not the position anymore. What is required is evidence that the testator intended by his signature to give effect to the will. In the case of Wood v Smith [1993] it was held that where a testator uses a standard will form and completes it in his own handwriting, heading it with "My will by XX" but fails to sign at the bottom of each page, the will is still valid as long as there is sufficient evidence that the testator intended his signature on the first or last page to authenticate the will.
Witnesses (section 9 (3) Wills Act 1837)
To be valid, a testator's signature on a will must be witnessed by two individuals who themselves are not beneficiaries. Since a testator is disposing of his entire estate, there is an exceptional need for authenticity. The essential requirement is that both witnesses should be present at the time when the testator signs or acknowledges his signature. It is important to note that the witnesses are not required to acknowledge or read the testator's will. The presence of the witnesses is merely to recognise that the testator's signature on the document is indeed his signature. It therefore does not matter if the witnesses thought that the document they attested was a contract or another legal document.
Signature of witnesses (section 9 (4) Wills Act 1837)
Once the testator has signed or acknowledged his will, the witnesses must sign the will in the testator's presence. It is important to note the witnesses do not need to sign in each other's presence. There may be a situation where the testator signs his will in the presence of two witnesses and one of the witnesses (witness X) leaves without having signed the will. The other witness (witness Y) can still attest the will in the testator's presence and the testator can then at a later stage get witness X to sign the will in his presence. In such a situation, the will will be recognised as valid.
Presumption of due-execution
A will will be presumed as being duly executed if on the face of it, it is properly executed.
Courts have been and continue to be robust in their application of the presumption of due-execution. In order to contest a will on the grounds of lack of due-execution, strong evidence is required or the court will revert to the application of the presumption. For example, in the case of Channon v Perkins [2006], although both witnesses were sure they had not signed a document in the testator's presence, the court characterised the witnesses' evidence as a mere failure to recollect. Witnesses therefore need to positively remember specific events where something went wrong with their execution. It is also helpful if they can be traced to give evidence of lack of due execution. For example, in the case of Murrin v Matthews [2006], the presumption was rebutted because although the will was signed by two witnesses, there was no address given for them nor could they be found. Since the sole beneficiary of the will was "overwhelmingly likely" to have been involved in the preparation of the will, and there was no evidence by the witnesses as to its execution, the will was found to be invalid.
Preliminary steps
If you have strong grounds to suspect that a will is not valid, it is important to take action and legal advice as soon as possible. You may wish to enter a caveat with the Probate Registry to prevent a Grant of Probate being taken out and the assets of the estate distributed. You can also contact the solicitors who prepared the will and request details regarding the will's preparation and locate the witnesses to the will to find out the circumstances surrounding the execution.
If you obtain strong evidence from the witnesses who can confirm that the will was not executed correctly, you can then make an application to the High Court of Justice asking the court to confirm the will is invalid.
Implications
If a party is successful in contesting a will and there is no previous valid will, then the testator will have died intestate and the estate will be distributed according to the Intestacy Rules.
Rectification
Solicitors specialising in Probate matters are often faced with disappointed beneficiaries who comment after seeing a will of a loved one that "those cannot be the wishes of the deceased".
If the wishes of the deceased have, genuinely, not been included within a will there may be a claim for the will to be amended. Legally, this is often referred to as being a claim for 'rectification'.
It is well-established law that "... an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases ...". This may result in a bizarre distribution but if it is in accordance with the deceased's wishes, a disappointed beneficiary may have difficulties in contesting a will.
If, however, a will does not include the true intentions of the person making the will (known as the testator) due to the act of a solicitor who drafted the will, it may be possible to bring a claim for rectification and/or professional negligence.
How to contest a will: rectification
Section 20 of the Administration of Justice Act 1982 provides the grounds for rectifying a will, namely:
"If the court is satisfied that a will is so expressed that it fails to carry-out the testator's intentions, in consequence of a:
- clerical error; or
- failure to understand his intentions,
it may be ordered that the will should be rectified so as to carry out his intentions".
Clerical error
"Clerical error" was defined in the case of Wordingham v The Roll Exchange Trust Company [1992] as meaning "An error made in the process of recording the intended words of the testator and the drafting or transcription of his will".
For example, if a testator gave instructions that all his children were to receive an equal share of his estate but the solicitor only named some of the children, clearly this would be seen as a clerical error. If, however, on the other hand, the draftsman misunderstands the law, this will not amount to a "clerical error" but professional negligence.
In practice it can often be difficult to establish whether a claim for rectification or professional negligence should be pursued. Legal advice should be sought on the specific facts of your case as to whether it is a clerical error or professional negligence.
Failure to understand instructions
If the draftsman applied his mind to the meaning and effect of the words but simply achieved the wrong result due to misunderstanding the testator, the disappointed beneficiary will only succeed with a claim to rectify the will if he is able to show the following:
- what the testator's intentions were with regard to the specific clauses in his will;
- that the will fails to reflect the testator's intentions;
- what were the testator's intentions;
- that the draftsman misunderstood those instructions; and
- that the failure of the will to reflect the testator's intentions was due to a failure on the part of the draftsman to understand those instructions.
Evidence required
From the outset it will be necessary to obtain a copy of the solicitor's file together with the solicitor's comments as to whether the will accords with the testator's wishes. If it is apparent from the file that the draftsman did understand the testator's instructions but simply misapplied the law, the disappointed beneficiary will have a claim in professional negligence and not for rectification of the will.
Time limit for seeking rectification
An application for rectification must be brought within six months of the date when a Grant of Probate was issued. Any claim brought after this period will require the permission of the court. The court will take into account the reasons for the delay in seeking rectification and in particular, whether any prejudice has been caused by the delay and whether the proceedings were pursued in an efficient manner.
Rectification and negligence
Virtually every case of rectification of a professionally drafted will involves an original negligent act by the draftsman. It is well established law that a disappointed beneficiary can bring a claim for professional negligence against the draftsman of the will. It is equally well established that a disappointed beneficiary is under a duty to mitigate his loss which he may do so by bringing an application for rectification. This duty does not require a claimant to embark upon speculative litigation as a "claimant need not take the risk of starting an uncertain litigation against a third party".
It may be more difficult for a claimant to succeed with a rectification claim than a negligence claim if the solicitor disputes the error in the will and there is no clear evidence of an error.
Implications of rectification
If a court finds that a clerical error has occurred or the will draftsman has failed to understand the intentions of the testator, the court will make a ruling as to the true intentions of the testator and the estate will be distributed in accordance with those true intentions.
Forgery and fraud
If the true intentions of the person making a will (known as a testator) are not contained within their will, it may be possible to contest a will on the grounds of fraud. Fraud is defined in criminal law as being "an intentional deception made for personal gain or to damage another individual".
Fraud is rarely pleaded when contesting a will for a number of reasons. Firstly, by its very nature, fraud often takes place behind closed doors. Secondly, one of the witnesses to the fraud (i.e. the deceased) will no longer be able to give evidence. Thirdly, when pursuing a civil action, the matter is normally decided on the balance of probabilities (i.e. if you prove your case 50.1% you will succeed). In actions involving fraud, there is a higher degree of probability required than usual.
Fraud has sometimes been regarded as being similar to undue influence. The only difference being undue influence involves a degree of coercion, while fraud does not.
Examples of fraud
Whilst fraud cases are rare, there are a few examples where a party has been successful when contesting a will. Such cases include where beneficiaries have made false representations to the testator about the character of a potential beneficiary and induced the testator to leave more monies to the perpetrator of the false representation. Other examples of fraud include where individuals have impersonated the "testator" in order to execute a will. Such cases are sometimes pleaded as forgery.
Even if a fraud has not been committed in the preparation of a will, there are instances where family members who have not been named in a will, have fraudulently destroyed the deceased's will, with the intention of gaining monies/assets pursuant to the Intestacy Rules.
Alternatives to pleading fraud when contesting a will
Even though there may be (i) suspicious circumstances; (ii) a suspicion of dishonesty; and (iii) a person benefiting under a will who was instrumental in its preparation, a lawyer may advise their client not to pursue a claim for fraud when contesting a will. The reason being, the higher degree of proof required than usual in a civil case. An alternative is to raise an allegation of "knowledge and approval". This simply puts the burden of proof upon the person alleging the will is valid to dispel the suspicious circumstances. If this cannot be done, the will will be invalid.
Implications
Where a will is successfully disputed and the court confirms the will is invalid, if there is not an earlier valid will, then the testator's estate will be distributed according to the Intestacy Rules.
Forgery
If it can be proved that a will in its entirety has been forged or the person allegedly making the will ("the testator") signature has been forged, this will result in the will being invalid.
Evidence required to prove forgery
When disputing a will, the standard of proof required is normally on the balance of probabilities, i.e. if you can prove your case 50.1% you will win the case. However, as forgery is a form of fraud, a higher level of proof will be required and therefore such an action should not be commenced without strong evidence.
From the outset, when challenging a will based upon forgery, it will often be necessary to instruct a handwriting expert to determine whether the testator's signature is genuine. In order to produce such a report, handwriting experts often require a considerable number of signatures with which to compare the signature on the contested will (normally in the region of 10-20 signatures). Handwriting experts also request that the original signature samples are available for inspection.
Handwriting expert
If the handwriting expert produces a report in which their conclusions are inconclusive, it is unlikely that a claim for forgery will succeed. Even in cases where a handwriting expert has confirmed that there are good grounds to propose forgery has been committed, if there is other factual evidence to contradict this finding, a court may not find that forgery has occurred. Accordingly, at the outset, if you wish to contest a will, witness statements should be obtained from any relevant witnesses regarding the surrounding circumstances, in addition to a handwriting expert being instructed.
Implications
If the court finds that a will is a forgery or the testator's signature is a forgery, the will will be invalid.
Where a will is successfully disputed and the court confirms the will is invalid, if there is no earlier valid will, then the testator's estate will be distributed according to the Intestacy Rules.
January 2017
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
