Challenging Suspicious Wills – What Are The Grounds And What Can You Do?

“Say not you know another entirely, till you have divided an inheritance with him.”

– Johann Kaspar Lavater

Writing a Will is considered a very personal matter. It is uncommon for people to discuss the contents of their Will with friends or relatives at great length, after all, nobody wants to think about their death.

However, there are situations which can arise (sadly all too often) where a person’s final Will does not reflect their true wishes. Whether you are someone who has been left out of a Will, or a family member concerned with the provisions contained within a Will, it is important to understand what can be done, and how we can help.

In this article, we will explore what options are available if you are concerned with the validity of a Will, as well as the grounds for contesting a Will in the UK.

What constitutes a valid Will?

It is not unusual for an individual (known as a testator) to draw up a number of Wills during their lifetime. These can reflect changes in their personal circumstances (such as the birth of a child), or financial changes (such as asset ownership).

However, in order for an individual’s final Will to be valid, it must meet the criteria set out in Section 9 of the Wills Act 1837, namely:

a. It is in writing; and

b. It is signed by the testator; and

c. The testator intended for the Will to be valid on signing; and

d. The testator’s signature is witnessed by two independent individuals

The signing of a Will can be challenged if there are concerns. For a Will to be valid, it is crucial that it is signed by the testator in the presence of two independent witnesses, who must also include their names and addresses on the Will.

If it is unclear whether the testator actually signed their Will, for example, where their signature differs substantially to other documents signed by them, it is important to ascertain whether it is indeed their signature. Handwriting experts can assist, keeping in mind the natural change to a person’s writing style over time.

If a Will is deemed to be valid based on the criteria outlined in Section 9 of the Wills Act 1837, there are still grounds to contest its contents. Below, we will explore some of the common reasons for disputing a Will.

The testator did not fully understand and approve the contents of the Will

It is possible to argue that the individual did not fully understand the contents of their Will if they were hard of hearing, suffered from a visual impairment, had low levels of literacy or if they were frail, vulnerable or unwell at the time their Will was prepared.

If there are concerns about the testator’s understanding of their own Will, substantial evidence must be gathered, including medical records to help show that the testator did not understand or approve the contents of the Will.

Lack of mental capacity

Although mental capacity may seem fairly self-explanatory, the courts will look to Sections 1 to 3 of the Mental Capacity Act 2005 in determining whether a person has the capacity to make decisions for themselves.

According to the Act, the initial presumption is that a person has capacity and a person will lack capacity if, at the time in question, he is unable to make a decision for himself because of an impairment of, or a disturbance in, the functioning of the mind or brain.

If a claim is to be made concerning the testator’s mental capacity, medical records should be obtained as well as the professional opinion of a suitably qualified medical expert.

Undue influence over the testator when the Will was written

For a claim of this nature to succeed, the court will expect to be satisfied that there is no other reasonable explanation for the testator’s actions apart from inappropriate influence exerted over them. The evidential burden is high and it must be proved that the testator acted against their own choosing (they were coerced into making a Will that they did not wish to make).

The recent case of Rea v Rea [2023] EWHC 1901 (Ch) highlights the complexity in challenging a Will based on undue influence and how time consuming this process can be.  Here, a number of factors lead the court to conclude that coercion and undue influence were exerted over the testator by her daughter, leading to a rare example of a Will being successfully challenged on the grounds of undue influence.

Inadequate Provision Claims

Certain individuals (such as a spouse/civil partner, child or financially dependent individual) can apply to the court for an order under the Inheritance (Provision for Family and Dependants) Act 1975 if they feel that they have not received reasonable financial provision from a deceased person’s estate. The Act respects the freedom of a person to decide how to distribute their estate, but also acknowledges that some people have a moral or legal responsibility to support their dependants after their death.

The court has a wide discretion to make any order that it considers appropriate to make reasonable financial provision for an individual who has not been adequately provided for.

Fraud and/or Forgery

In certain circumstances, it is possible to challenge the validity of a Will due to fraud or forgery. However, it will be necessary to show that a third party sought to deceive for personal gain, such as impersonating the testator, and in these instances a Will may be deemed to be invalid.

What power does the court have in relation to a contested Will?

Firstly, any parties with an interest in an estate can lodge a caveat at the Probate Registry to stop the Grant of Probate being issued. This is something we can also assist with. Once a caveat has been lodged, it will remain active for six months and will prevent the executor from distributing the estate (probate cannot be granted unless the caveat is removed or expires).

After a caveat has been lodged to block the Grant of Probate, if someone chooses to contest the Will in court on one of the above grounds, there are a number of orders which can be made by the presiding judge including:

• A decision may be reached that the Will is indeed valid and that the executors should continue to administer the estate in accordance with it
• An order being made to appoint a new executor and remove an existing executor from a Will
• Rectification: if there was an issue with the Will’s execution, the court may still deem the Will to be valid (e.g., the testator signed in the wrong place)
• A declaration that the current Will is invalid in favour of an earlier one or declaring a Will invalid and rule that the estate should be distributed on the basis of the intestacy rules
• Changing the terms of the Will entirely

It is advisable to investigate the validity of a contested Will early, before the estate is distributed. Often, third parties may be slow to respond, and the recollection of those who can assist may wane over time. The court may also take into account how much of the estate has been administered when making any decision.

How we assisted a client and how we can help you

We were recently instructed by two daughters who had concerns about the contents of a number of Wills drawn up by their father prior to his death. The beneficiaries in each of the Wills varied and it was not clear how involved the executor was in the preparation of the Wills and whether they were valid.

To assist the family, we reviewed substantial amounts of evidence provided by the testator’s children to gain an understanding as to the testator’s intentions. These included text, WhatsApp and email messages between the executor and the testator, as well as copious correspondence between the executor and the named beneficiaries. From our investigations, we concluded that at least one of the Wills was not valid.

Although the testator’s Wills were not written by a solicitor, we successfully wrote to the law firm dealing with the estate administration setting out our clients’ concerns and asking them to provide their client (the executor) with a Larke v Nugus request. A Larke v Nugus request is commonly used to make enquiries, amongst other things, in relation to information concerning the preparation of a Will by a solicitor, what instructions were provided by the testator, any medical history known to the individual preparing the Will and details of who witnessed the execution of the Will and where this took place.

In response to our letters, we received answers to all of the questions posed in our Larke v Nugus request and subsequently prepared questionnaires to be sent to the individuals who acted as witnesses to the various Wills.

If you are unsure whether a Will is valid, or are concerned about what steps can be taken to challenge a Will, our experienced solicitors can help. For all new matters, we offer a no-cost, no-obligation 20-minute introductory call as a starting point.

Please email wewillhelp@jonathanlea.net  providing us with any relevant information ensuring that any call we have with you is as productive as possible.

This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited 2024.