The two most common grounds for challenging the validity of a will are that the testator lacked the necessary mental capacity to make the will and that the testator was coerced or unduly influenced to make a will, typically leaving most or all of their estate to a certain person.
The recent case of Re Jones  EWHC 1457 involved both issues and is a good illustration of how the Courts will approve such challenges to wills.
Daphne Jones had four daughters, one of whom had predeceased her. She had also been diagnosed with early vascular dementia. One of her daughters, Ceri, moved in with her and from then on, began to isolate her mother from family members. Daphne then executed a will, leaving everything to Ceri. Not surprisingly, her other daughters challenged the will both on the basis that their mother lacked the necessary capacity to make a will and on the basis that she had been unduly influenced by Ceri to make a will in those terms.
The testamentary capacity challenge
The daughters failed on this ground. The Judge applied the well established test set out in Banks v Goodfellow and found that Daphne had had capacity to make the will. This fourfold test is as follows:
- Did the testator understand that she was making a will?
- Did the testator understand the extent of her property?
- Did the testator comprehend and appreciate the people to whom she might consider leaving her estate – in other words, did she know who her family and friends are?
- Is there any disorder of the mind that might poison her affections or pervert her sense of right or prevent her exercising her natural faculties – meaning is there any medical condition that would affect her from knowing that she was making a will, what her property consisted of or who her friends and family were?
Even though a person has mild to moderate dementia, they can still tick all of the above boxes and therefore have capacity to make a valid will. Capacity depends on the potential for a person to understand what it is they are doing.
In this case, the will was very short and straightforward, leaving everything to Ceri. Daphne’s property consisted of her house and a bank account and so was also straightforward. There was no evidence that she didn’t know who her children and grandchildren were. The person who had prepared the will gave evidence that Daphne told him what to put in the will. Therefore, the Judge concluded that Daphne had capacity to make her will and it was not therefore invalid on that ground.
The knowledge and approval challenge
The daughters also challenged the will on the basis that Daphne did not know or approve the contents of the will when she signed it.
While the Judge found that there were suspicious circumstances in that the will had been prepared and executed without a solicitor being present and given Daphne’s medical background, he also found that given it was short and straightforward, Daphne had known and approved its content. That head of challenge was also therefore unsuccessful.
The undue influence challenge
Happily for the daughters, their undue influence challenge succeeded and the will was declared invalid on that ground. They were able to persuade the judge that there was sufficient evidence from which undue influence could be inferred.
To establish undue influence, it is for those challenging the will to evidence that the facts are inconsistent with any other hypothesis other than a person’s true will being overcome by the coercion of another (and typically the person who then benefits handsomely from the challenged will). A weak or ill person is more likely to have their will overborn than someone who is strong and healthy and so a person’s mental and physical health is relevant. Coercion can come in many forms and it can be sufficient if continual pressure is applied which makes the testator cave in for the sake of a quiet life. The question is essentially whether the testator remained a free agent when they made their will.
Here, the Court found that Ceri’s behaviour towards Daphne did amount to undue influence and the facts were inconsistent with any other conclusion. In particular:
- Daphne’s stated intention had always been to share the house between her four daughters (and for her deceased daughter’s share to pass to her children);
- Daphne was devastated by her daughter's death and was still grieving when she made her will;
- Once Ceri moved in, she began to isolate her mother from other family members so that by the time the will was executed Daphne was almost completely alienated;
- Ceri repeated lies to her mother about two of her other daughters taking her money and credit cards;
- By the time Daphne made the will, she was both physically and mentally vulnerable and substantially dependent upon Ceri; and
- The retainer with the solicitor who had been instructed to prepare a will was terminated and the will subsequently executed without the involvement of a solicitor and without any further medical examination, leading the Judge to find that this was because Ceri did not want to jeopardise her chance of inheriting all of the estate.
The will was therefore found not to represent what Daphne truly wanted and because her free will had been overborn by Ceri, the will was declared invalid. In the absence of any earlier will, Daphne’s estate instead passed under the intestacy rules in equal shares to her three surviving daughters (which of course included Ceri) and to the children of her deceased daughter.
If you are concerned whether a loved one may have been coerced into making a will or you are worried whether a loved one had capacity to make a will, please do get in touch with our contested probate solicitors – we can help.