How to Contest a Will: Legal Grounds & Challenges Explained

Introduction

I have been acting on contested probates and inheritance disputes for over 20 years.  In the last five years, due to their increase, they have become a major part of my practice.  The claims broadly fall into two groups.  The first is regarding challenges around the validity of a will, and the second is regarding contesting the contents of the will and claiming provision from the estate.  This article will focus purely on challenging the validity of the will.  It does not cover situations where the will is valid, but where the potential claimant feels that they were wronged and wishes to claim for a share or provision under the deceased’s estate. 

Grounds for challenging a will

I will set out below the common challenges to the validity of a will.  Some of these I will only touch on because they are rare or, in some cases, obvious, and in others, very fact-specific.  I have separated the article into common challenges and less common challenges.

The challenges that I see most often are:

Want of execution

The Wills Act 1837 sets out the formalities that must be met for a will to be valid.  The common areas of challenge under this header are covered by section 9 of The Wills Act 1837.

In short, the will must be in writing and signed in a particular manner with the signature usually at the end of the document.  The signature must be made in the presence of two or more witnesses.  It must appear that the testator intended by their signature to give effect to the will.

There are exceptions, but these would form the basis of an article in themselves and so I will not touch on these here.

Therefore, in short, if the will is not executed properly, there may be an opportunity to challenge.

Capacity

Another very common area of challenge is the testator’s capacity.  Did they have the mental capacity to understand that they were making a will and its importance? Again, this is a very complicated area, and you will appreciate that when dealing with a human, each case is likely to turn on its own facts.

I, therefore, try to set out below a summary of the position so far as I can.

In the case of Banks v Goodfellow [1870], the Court broadly stated that when a testator executes their will, they must have the mental capacity to do so.  This means that they must know what they are doing and the extent of the property which they are giving away in their will.  They need to be able to comprehend and appreciate the claims to which they ought to give effect, e.g those family members, etc who would expect to have provision made for them and be accounted for.

‘For the purposes of making a will, no disorder of the mind should poison their affections, pervert their sense of right or prevent the exercise of their natural faculties.  No insane delusion must influence their will in disposing of their property.’

While this summary, taken from the case, does tend to use more arcane language, it does give an accurate flavour of what the Court will look for.

I have myself seen situations where a testator who is suffering from dementia can accurately summarise all of the assets in their estate, explain precisely how they want to leave their estate and what they want in their will, and the importance of what they are.  My point is that the capacity to make a will is a very subjective and flexible matter.

Capacity has effectively been codified in the Mental Capacity Act 2005 and specifically sections 1 to 4.

Section 2 states that a person lacks capacity if at the material time they were unable to make a decision for themselves because of an impairment of, or a disturbance in the functioning of, the mind or brain – whether permanent or temporary.

The other sections help further.

It is also worth making the point that there is the presumption of capacity.  If a will is executed properly on its face, the presumption is that the testator had capacity unless evidence can be shown to the contrary.  It is worth making the point that such evidence would need to be strong and, in most cases, revolves around medical records, medical assessment and the witness evidence of those that knew the testator and saw them on a regular enough basis to understand their situation and their mental capacity.

Undue influence

Undue influence is an area of challenge which is frequently raised by clients but often does not go anywhere due to the fact that it is so difficult to prove.  Undue influence has had various definitions.  In Hall v Hall [1868], it was defined as:

‘to pressure whatever character … if so exercised to overpower the volition convincing the judgment’

In Wingrove v Wingrove [1885], it was defined as:

               ‘In one word – coercion’

Specific examples of undue influence that have been reported are:

i)             where a son poisoned his mother’s mind against his brother, influencing her to leave everything to him;

ii)            where a husband and son convinced the testatrix, following her stroke, to leave everything to the son and not to her daughters.

The usual context that I see undue influence in, is where an elderly parent or aunt has gone to stay with a particular family relative and they have effectively taken over their life.  They are the main visitor or the main shelter and sustenance provider and thereby slowly but surely become the favourite and convince the testator to leave everything to them.  I have seen more aggressive situations where, for example, a mother was living with her son and was threatened with being thrown out on the street and harmed in other ways if the will did not go his way.

The problem with all these cases is that most of them take place behind closed doors, where there are no witnesses, there is often little access to the testator and when there is, they are scared to say too much and so there is nothing more than a feeling induced from family members knowing the testator.  The Court has said that in order to bring an undue influence claim, there needs to be strong evidence.

The other problem with undue influence cases is that where they exist, they often settle quickly in order to avoid embarrassment or a criminal sentence, and so they often go unreported.  This means that the case law is limited.

There has been a recent run of undue influence cases.  I will not report these here but will cover these in a separate article.  However, while they are useful, the fact that most of these cases turn on their own facts, means that this particular ground for objection is not necessarily growing as quickly as it could.

Fraud

I will not go into fraud in any more detail other than to say that it is what it is.  If the will has been created and the testator’s signature forged, or similar, then the will can be challenged.  However, to succeed at fraud, you would need very good evidence.

Less common challenges

1.            Fraudulent calumny

This is where a person poisons the mind of a testator against an individual who would otherwise be a natural beneficiary under the testator’s will, by making honest aspersions about their character.  These days this tends to fall more into undue influence but is a specific head of challenge.  Again, it is providing evidence of this that becomes the problem.

2.            Knowledge and approval

If it can be shown that the testator did not have knowledge and / or approve the contents of their will, then this may be an area of challenge.  So for example, if the testator had told everybody that a will was going to work one way, but when the will was executed it worked another, and it could be shown that they did not really know what they were doing / signing, this may be an area of challenge.

3.            Sham

Similar to knowledge and approval, this is where a will is signed and executed, but the testator did not mean to give it effect.  In one case, the testatrix signed the will, but did not date it and sent it back to her solicitor, stating that when certain actions had happened in the future, and these were complete, the solicitor could date the will.  The Court examined this and said that when the will was signed, she had not meant it to take effect and so the will was invalid.  This was the case even though the actions had taken place, and the solicitor had then dated the will.

4.            Revocation

If a testator makes a will and then marries or enters into a civil partnership, or their marriage or civil partnership is annulled or dissolved, or they execute a subsequent testamentary document (i.e. a further will) or they destroy the will – then this is revocation, and the will would not be valid.  It is, therefore, vitally important that if you marry or annul or divorce, you make a new will.  In a similar vein, if you make a subsequent will, you should destroy your first will and make it clear to everybody that you have done so.  If you destroy your will thinking that it can be sellotaped back together, arguably, it cannot.

Conclusion

Each of the above, as you will appreciate, is subject to the facts of each case and there is ample case law and rules dealing with each one.  I have, therefore, tried to give a potted summary of all of them here. 

If you would like advice, please do not hesitate to get in touch with me, Graham Mead, at gmead@prettys.co.uk or 01473 232121.

If you would like to make a will, please contact Emma Woollard at ewoollard@prettys.co.uk or 01473 298342.