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Challenging or Contesting a Will (Contentious Probate)

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Disputes about existing Wills, or the fact that no Will has been made, make things harder than necessary.

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Contesting a Will, also known as Contentious Probate is a specialised area in which there is no substitute for proper advice from a professional. As a starting point, it’s always good to know a few basic details before deciding how to proceed. There are 3 main reasons for contesting a Will:

  1. You do not think a Will is valid and want advice on contesting a Will
  2. You do not think that you have been properly provided for in a Will or intestacy (where there is no Will)
  3. Someone is disputing or contesting a Will or making a claim against a Will/Estate and you need to defend the claim.

Before you launch yourself into contesting a Will, be clear on why – the Court will consider the validity of a Will for the following reasons:

  • Lack of testamentary capacity
  • Lack of knowledge and approval
  • Undue influence
  • A fraudulent or forged Will
  • Lack of valid execution of the Will or because
  • The Will needs to be rectified or there is a dispute about the way in which the Will should be construed.

If you think there are grounds then read our extensive guide to contesting a Will and Intestacy:

The Definitive 2019 Guide to Contesting a Will or Intestacy

Grounds for Contesting a Will

Just because you don’t like what someone has written in their Will does not mean that you can object to it.

The grounds for contesting a Will are limited and are as follows:-

• The Will is a forgery
• The person who made the Will did not have the capacity to do so
• The person who made the Will lacked knowledge or approval
• The person who made the Will was influenced
• The Will was not correctly executed
• The Will has an error on it that needs to be corrected or rectified

Forgery

If a Will is forged then it will be invalid. Proving forgery requires showing that the Will that is relied upon is has been altered, either in relation to the date, the provision of the Will or the signatures of the testator or witnesses.

Lack of Capacity

If someone lacks the capacity to understand the Will that they are making then it will be found to be invalid. Lack of capacity is one of the most common reasons to contest a Will.

The test for capacity still dates back to the case of Banks v Goodfellow [1870]. In that case, John Banks had been committed to a lunatic asylum for a number of years with mental health problems. After he was discharged from the asylum, he continued to suffer from some delusions. One of these was a belief that a man named Featherstone Alexander was persecuting him. In his Will, Banks left his estate to his young niece, Margaret Goodfellow. He had lived with his niece following the death of her mother, Banks’s sister.
John Banks Junior, the son of John Banks’ half-brother, contested the Will. He argued that the John Banks did not have testamentary capacity.
It was found that Banks’ Will was valid. Whilst Banks did suffer from mental illness which caused delusions of the mind, these delusions did not influence his decision regarding who should benefit from his estate.

Test for Testamentary Capacity

The test for testamentary capacity was set out in the judgment in Banks v Goodfellow as follows:-
“It is essential to the exercise of such a power that a testator
[a] shall understand the nature of the act and its effects;
[b] shall understand the extent of the property of which he is disposing;
[c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object,
[d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
More recently, the case of Walker v Badmin [2014] confirmed that this remains the test for testamentary capacity and that the Mental Capacity Act 2005 provides assistance but is not the test.
The Banks v Goodfellow test differs from the test for capacity set out in The Mental Capacity Act 2005 which provides:-
Section 1:-

• A person must be assumed to have capacity unless it is established that they lack capacity;
• A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success;
• A person is not to be treated as unable to make a decision merely because they make an unwise decision.

Section 2:-
A person lacks capacity in relation to a matter if at the material time they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain;
It does not matter whether the impairment or disturbance is permanent or temporary; a lack of capacity cannot be established merely by reference to –
(a) a person’s age or appearance, or
(b) a condition of their, or an aspect of their behaviour, which might lead others to make unjustified assumptions about their capacity;
Any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

Section 3:-
A person is unable to make a decision for themselves if they are unable –
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
A person is not to be regarded as unable to understand the information relevant to a decision if they are able to understand an explanation of it given to them in a way that is appropriate to their circumstances (using simple language, visual aids or any other means).
The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent them from being regarded as able to make the decision.
The information relevant to a decision includes information about the reasonably foreseeable consequences of –
(a) deciding one way or another, or
(b) failing to make the decision.

Although Banks v Goodfellow may be a case that was decided a long time ago, it is still good law.

In many cases if may be necessary to obtain medical evidence to prove that the testator lacked the requisite capacity when the Will was made.

Want of Knowledge and Approval

A testator must have knowledge and approval of the contents of a Will in order for it to be valid.

 

To challenge a Will for want of knowledge and approval there must be “circumstances that ought generally to excite the suspicion of the court”.  In such cases it is for whoever seeks to prove the will to remove the suspicion and establish the testator knew and approved of its contents.

 

Suspicious circumstances will of course vary from case to case but our top ten

 

1. Spelling mistakes or language in the Will that would not have been used or understood by the testator

2. Untrue statements in the Will

3. A Will that makes provision for a beneficiary who was not known to or close to the testator

4. A substantial change in a Will without a rational explanation

5. The Will is witnessed by people who had an interest in the Will or were not independent

6. There is evidence that the testator lacked testamentary capacity or was being influenced

7. There is evidence of the beneficiary having acted dishonestly, suspiciously or against the interests of the testator or having played a central role in the making of the Will;

8. Unusual behaviour of the testator at the time the Will was made

9. A homemade Will where no professional advice has been sought

10. A Will drafted by a solicitor introduced to the testator by a main beneficiary where there is no other reason for that solicitor to be instructed

If  testator is,

• deaf and/or dumb

• cannot speak or write

• paralysed

• blind or illiterate; or

• the will is alleged to have been signed by another person for the deceased at his direction

the court will require evidence to prove that the testator understood and approved the content of the Will in the event of any challenge.  The mere fact of an incapacity such as those listed above will not, of itself, make a Will invalid.

Undue Influence

Undue influence is influence by which a person is induced to act otherwise than by their own free will or without adequate attention to the consequences.

 

In the case of Hall v Hall [1868] undue influence was described as being “pressure whatever character … if so exercised to overpower a person’s wishes.”

The burden of proof in undue influence cases is high and falls on the person who asserts that there has been undue influence to prove that.  The coercion required for undue influence could be physical in the form or violence or bullying (which may be easier to prove) or mental, such as verbal assaults, threats or telling the testator things that are not true.  Such was the case in Edwards v Edwards [2007] where false tales to the testator told by one of her children to secure an inheritance were found by the Court to have been a “deliberate poisoning of a person’s mind”.

Undue influence can be very difficult to prove since it usually takes place in secret and the results are often only discovered once the testator has died.

Lack of due execution

There are strict rules about how a Will is to be signed.  If those rules are not followed then a Will cannot be valid.

The requirements for executing a Will are set out in full in The Wills Act 1837.  The starting point is that if a Will that appears to have been properly executed it will be presumed to have been validly executed until proven otherwise.  This is the “presumption of due execution”.

A will is properly executed if it is signed in the presence of two or more witnesses. Each witness must sign the will in the presence of the testator (although not necessarily in the presence of each other).

 

To overturn the presumption of due execution there will need to be the strongest of evidence.

An error has been made

In some cases a Will includes a mistake or error.  In certain circumstances mistakes in Wills can be corrected by applying for rectification.

A Will can be rectified under Section 20 Administration of Justice Act 1982 which provides that

“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:

1. clerical error; or

2. failure to understand his intentions,

it may be ordered that the will should be rectified so as to carry out his intentions”.

A clerical error is a mistake in recording the words, wishes or intentions of the testator.  A failure to understand the testator’s intentions by the person who drafted the Will can also result in an application to rectify the Will.

In all cases it will be necessary to obtain the file of the solicitor who drafted the Will to establish what instructions were given, how they were reflected in the Will itself and whether the Will is capable of being rectified.

In many cases a claim against a solicitor for professional negligence should be considered also.

Contesting an intestate estate

If someone dies without making a Will they are said to die intestate.

The Estates of people who die without making a Will are dealt with in accordance with the Intestacy Rules that apply at the date of their death – providing for immediate family in strict order and dividing the Estate between classes of family members such as the testator’s spouse, children or siblings etc.

The only basis for challenging an intestacy is by finding a valid Will.  A Will does not have to be recent to be valid, any Will properly executed will be the testators “last Will and testament” even if it goes back a number of years.

 

How to contest a Will

The first step in contesting a Will is to lodge a Caveat to prevent the issue of a Grant of Probate to anyone.  A Caveat is a formal note lodged at the Probate Registry which prevents the issue of a Grant.  Caveats remain in force for a period of 6 months but can be renewed.

While a Caveat is in force, steps should be taken to gather evidence as to the circumstances in which the Will came to be drafted and executed.  It may also be relevant to obtain medical records for the deceased to allow consideration of the testator’s mental capacity at the time they made the Will.

Taking early legal advice is advisable.  The clock is ticking if you want to challenge a Will’s validity.

It may be possible to agree that a Will is invalid.  If it is not then an application will need to be made to the Court for a determination as to whether the Will should stand or not.

What happens if a Will challenge succeeds?

If you are successful in proving that a Will is invalid it will be necessary to look at the last valid Will.

In some cases there is no merit in challenging the validity of a Will if the terms of a previous Will do not benefit you or if they are substantially the same as the Will under challenge.

If there is no previous valid Will then the Estate will be dealt with under the intestacy provisions, the statutory rules that dictate what happens to an Estate if someone dies without making a Will.

Before you embark on a process of challenging a Will it is important to look at what the outcome might mean for your interest in the Estate.