Challenging a Will? - What's New?

One of the questions that we are most frequently asked by disappointed family members is whether they can challenge a will in England and Wales before or after probate has been granted

There are essentially four main grounds on which to base an argument that a will is not valid:

1. Has the will been validly executed?
2. Did the testator have testamentary capacity to make the will?
3. Did the testator know and approve what was written in their will?
4. Was undue influence or duress exerted on the testator?

1. Has the will been validly executed?

For a will to be valid, it must be signed by the testator in the presence of two witnesses and each witness must also sign the will in the presence of the testator (but not necessarily each other). This has been the case for nearly 200 years since the enactment of the Wills Act 1837.

How to check if a will has been validly executed:

• The first thing to check is therefore whether the will is signed by the testator and also by two witnesses. 
• Do the signatures look like those of the testator and the witnesses? 
• Is there a possibility that the signatures may have been forged?
• Can the witnesses provide evidence to confirm they saw the testator sign the will and that they signed it themselves?

Covid forced a temporary change given that lockdown rules prevented households from mixing and so for some time it was not possible for the two witnesses and the testator to all be present in the same room to execute a will. The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Orders 2020 and 2022 modify the usual execution rules for wills executed between 31 January 2020 and 31 January 2024. This enables the signature of wills to be witnessed via Zoom and similar video conference platforms. However, the testator and each of the witnesses still need to physically sign the same document and therefore there needs to be careful consideration as to how this will be done. This gives rise to an opportunity for foul play between signatures and may become a ground for validity challenges in future.

2. Did the testator have capacity to make a will?

Often there are concerns about whether a person had capacity to make a will, especially if there is a medical history of dementia or a mental health condition. Several such cases have made their way to trial over the last year and the points which emerge from these are as follows:

• The Court makes the decision on whether a testator had capacity or not. The problem with expert medical evidence is that the report is prepared based on the deceased’s medical records without the expert actually examining the testator. It is open to the Court to find that a testator had capacity even if an expert medical report said they did not (and vice versa).
• A lot of weight will be placed on contemporaneous attendance notes prepared by the solicitor who drafted the will and on the evidence that they give at trial. In one case, the fact that a solicitor had recorded that the testator was forgetful was helpful in establishing capacity because it showed that the solicitor was alive to the possibility and had therefore directly applied their mind to the capacity issue at the time that the will was prepared and executed, perhaps being more careful and thorough on that issue as a result.

3. Did the testator know and approve what was written in their will?

There is a presumption that the testator knows and approves the contents of a will that he signs. This can however be rebutted by evidence that suggests otherwise.

An example of this is the recent case of Reeves v Drew where the testator had limited reading abilities which was exploited by his daughter when he made a new will leaving 80% of his £100million estate to her. While a claim for undue influence failed (more on this ground below), the Court found that the testator had not understood the terms of the will he had signed, which departed radically from the terms of his previous will. The new will was found to be invalid because of a lack of knowledge and approval on the part of the testator.

4. Was undue influence or duress exerted on the testator?

Finally, a testator must act on their own free will and not be coerced into making certain gifts in their will that they would not do so otherwise, usually to benefit the beneficiary exerting the duress. There have been a number of reported cases in the last 12 months where undue influence and duress have been alleged in an attempt to have a will declared invalid.

• As with testamentary capacity challenges, the Court will place significant weight on contemporaneous evidence from the solicitor who prepared the will and the doctor who assessed capacity. In one case, their evidence was that neither had seen anything that suggested coercion when the will was prepared and executed. Neither had any motive to provide false evidence. The will in that case was found to be valid.
• Persuasion will not usually be sufficient to get over the high evidential threshold necessary to win an undue influence argument. This was another case where the evidence of the solicitor who prepared the will was key and the fact that independent legal advice had been sought in connection with the will defeated the undue influence claim.
• Evidence of a strong character on the part of the testator (even if they are physically or mentally frail) will also be a factor that can defeat a challenge based on undue influence.
• However, even a strong minded testator can be worn down by constant pressure as happened in Re Ho Chau Ying Chin. Here, the testator disinherited her five daughters (who had been left her entire residuary estate in an earlier will) and instead left almost her entire estate to her son. The Court found that the will was not valid because of the undue influence that had been exerted by the testator’s allegedly “domineering” and “abusive and manipulative” husband and by her son. They orchestrated events that led to contact being cut between the testator and her daughters. She suffered a stroke, leaving her physically and mentally dependent on her husband and son. The Judge found that eventually she capitulated “for the sake of a quiet life” and changed her will in line with the wishes of her son and her husband who believed that in accordance with Chinese tradition, everything should be left to the son. The will was declared invalid on the ground of undue influence.
• The Court also heard evidence that the deceased had never learnt to speak English and so the will challenge also succeeded on the basis that the testator also had not known and approved the content of the will she signed, finding that the translator who had assisted when the will was made themselves had a poor command of the English language.

Every potential challenge to a will very much turns on its own unique facts and the evidence that can be produced either to support the validity of a will or to argue that it should not be upheld. If you find yourself caught up in a will challenge before or after probate, please get in touch as we can help. As well as providing legal advice on the merits of your case, we can also assist in gathering evidence from the person who drafted the will and in obtaining the medical records of the deceased. As the cases above show, such evidence can be critical to the outcome of the claim.