How to go about contesting a Will and lessons from the case of Gowing and Others v Ward and Another

We live in a jurisdiction where we are free (subject to statutory intervention in the form of the Inheritance (Provision for Family and Dependents Act) 1975) to dispose of our worldly possessions, by Will, as we see fit. Where a Will has been made which is rationale on its face and has been properly signed and witnessed, the presumption is that it is a valid document. (Ledger v Wootton [2008] WTLR 235).

Challenging a Will

There are a variety of avenues for seeking to contest a Will and broadly, the main grounds for challenge are:

Lack of mental capacity

1.  The test in this regard remains that contained in the case of Banks v Goodfellow which states that the testator must be able to:
2. understand the nature of the act i.e. that he/she is making a Will and its affect;
3. understand the extent of the property of which he/she is disposing;
4. comprehend and appreciate the claims to which he/she ought to give effect. He must not be subject to any disorder of the mind which “poisons his affections, perverts his sense of right, or prevents the exercise of his natural faculties”.

Want of knowledge and approval

1. When considering whether a testator knew about and approved the contents of a contested Will, the following points are relevant:
2. Is the Court satisfied that the person understood that he/she was making a Will and its effect and that the document represented his/her testamentary intentions.
3. The Court can infer knowledge and approval from proof of capacity and proof of due execution.
4. It is a matter of commonsense and authority that where a Will has been properly executed, after being prepared by a solicitor and read over to the testator, there will be a very strong presumption that it represents a testator’s intentions at the relevant time.
5. However, proof of the reading over of a Will does not necessarily establish “knowledge and approval”. Whether more is required depends upon the circumstances and the terms/complexity) of the Will.
6. It is for the person/s challenging the Will to produce evidence which arouses the suspicion of the Court.
7. It is not for the person challenging the Will to positively prove that the testator had some other specific testamentary intention, but to produce evidence which means that the Court is not satisfied (on the balance of probabilities) that the testator understood the nature and effect of the Will he/she actually made. There will need to be good evidence because generally, the Court is cautious to accept a challenge as to validity where a Will has been executed in the circumstances described at paragraph C above.
8. Where there is evidence of a failing mind, coupled with the fact that a beneficiary has been involved in the Will making process, the Court will require more than proof that the testator knew the contents of the document which he signed. In that scenario, the Court may additionally require evidence that the effect of the document was explained, that the testator did know the extent of his/her property and that he did comprehend and appreciate the claims upon his estate to which he ought to give effect.

Undue influence/fraudulent calumny

With regard to lifetime dispositions, there is a presumption of undue influence. This is not the case with gifts made by a Will. Whether the Will was procured by undue influence is a question of fact. The burden of proving undue influence will lie upon the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis.

In the context of preparing a Will, undue influence would be exercised either by coercion (in the sense that the testator’s Will must be overborne) or by fraud. Coercion is described as pressure that overpowers the volition without convincing the testator’s judgement. It is not the same as mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes the testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgement, discretion or wishes, would be enough to amount to coercion in this sense. 

The physical and mental strength of the testator are relevant in determining how much pressure is necessary to overbear their Will. The Will of a weak and ill person may be more easily overborne than that of a hail and hearty one. 

There is a separate ground for challenging a Will on the grounds of fraud known as fraudulent calumny. This is where person A poisons the testator’s mind against person B, who would otherwise be a natural beneficiary, by casting dishonest dispersions on his character. In that scenario, the Will is liable to be set aside. It is crucial that the person alleged to have poisoned the testator’s mind either knows that the aspersions are false or does not care whether they are true or false.

Gowing & Others v Ward & Anor [2024] EWHC 347 (Ch)

On whichever ground/s a Will is challenged, the reality is that the Court will want to refer to the contemporaneous evidence of the Will making process. This will usually include the file of papers of the Will draftsman, together with a statement from that person as to the circumstances of the preparation and execution of the Will. Where capacity is an issue, medical records (and ultimately an expert report) will be required. It is extremely important with this type of litigation, that full and proper enquiries are carried out in the early stages in order to establish whether a potential claim has merit. 

The Court jealously guards the freedom of individuals with capacity, who are operating as free agents to dispose of their assets. The Court when considering a validity claim is not concerned with whether the terms of the Will are fair, but with whether they genuinely represent the testator’s wishes. The case of Gowing heard by Master Brightwell, makes for an interesting read and contains a good summary of points of consideration in respect of the main grounds for challenging validity. 

Background to the dispute

The claim concerned the Will of Fredrick Ward (Fred) who died at the age of 91. Fred had three children. One child predeceased him (Fred Junior) and Terence and Susan survived. Fred Junior had five daughters who challenged Fred’s Will. Fred’s Will, subject to some specific legacies, split the residuary estate equally between Terence and Susan. It was acknowledged that Fred had made an earlier Will, whilst Fred Junior was still alive, in which the residuary estate was split equally between his three children. 

Fred Junior’s children challenged the validity of Fred’s final Will arguing that under the earlier Will, by virtue of Section 33(1) of the Wills Act 1837, they would be entitled to the third share which would have passed to their father. They challenged the Will on the grounds of lack of capacity, want of knowledge and approval and/or undue influence and/or fraudulent calumny. The basis of their claim was that Fred’s true intention was to divide his estate into three shares so that one share would pass to Fred Junior’s children. It is notable that the serious pleading of fraudulent calumny was withdrawn prior to the trial commencing, no doubt to avoid the likely cost consequences of a serious allegation of fraud failing. 

Ultimately, all the claims pursued by Fred Junior’s children failed and the Court was satisfied that Fred had testamentary capacity and that he knew of and approved the contents of his Will. 

Points of Interest

The serious risks and limitations of witness evidence

I noted with particular interest the comments made by Master Brightwell concerning the quality of the witness evidence. It is often the case when a Will is challenged, that the Court will be called upon to consider the factual evidence of lay witnesses. Clients should always be made aware of the considerable risks of the Court’s interpretation of oral evidence. Those with experience will no doubt at some time have come across the ”star witness” who is unceremoniously undone in the witness box, not to mention witnesses regarded as weak on paper who give a marvellous performance on the day.

Master Brightwell’s comments give a clear insight into the difficult job faced by the Court in dealing with such witness evidence. They are a reminder of the human element of oral evidence, which is grounding in that these are real people and families that we are dealing with, but at the same time unpredictable and at times unreliable.

Master Brightwell, in his judgement, refers to the observations of Leggatt J in Gestmin SGPS S.A v Credit Suisse Limited [2013] EWHC 3560 with regard to the “unreliability of memory” and his caution to place limited, if any, weight on witnesses’ recollections of what was said in meetings and conversations, and instead to base factual findings on inferences drawn from the documentary evidence and known or probable facts.

He expresses concern as to the ability of a witness, in seeking to recall events that took place some time ago, to falsely do so, albeit with genuine conviction and belief that their recollection is accurate. He also cautioned that “… it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”.  He was further alive to the concern that “… a witness seeking to recall events over a significant period of time is liable, in reconstructing those events in his or her own mind, to do so in a way that inaccurately recalls the same in his or her favour, and to exaggerate perceived advantages to his or her own case, and to do so without deliberately giving false evidence”. 

It is extremely interesting to note Master Brightwell’s very human assessment of each of the witnesses. He refers to witnesses being: “confident and assured”, “not argumentative”, being “clear and direct and, in my view, generally straightforward” and to witnesses being “both defensive and aggressive”. One of the phrases he uses (which is a favourite of my own) is referring to evidence which has “a ring of truth to it”. He is alive to particular themes running through the oral evidence e.g. with regard to one of the parties being generally considered as “money mad”. 

He further made reference to the risks of witnesses forming a “collective memory … influenced by long consideration” of litigation. The obiter comments should be read as a cautionary reminder that inevitably litigation is a risky business. 

Other points of note

1. Instructions to expert witnesses must be carefully and clearly drafted to avoid experts straying outside their area of expertise and into the realms of analysis to be performed by the judge.
2. When non-contentious practitioners are taking instructions for the preparation of a Will, it is crucial to enquire as to the testator’s previous Will making. This should immediately raise red flags if significant changes are being made.
3. It is possible for a person to have a long held testamentary intention which alters. This should be clearly and carefully explored with the testator and recorded in detail in the Will writer’s notes.
4. Just because a person suffers from a series of comorbidities, that of itself does not cause a lack of capacity. There needs to be additional evidence of confusion, delirium and lack of cognition.
5. It is important not to confuse cognition and capacity.

Final thought

At the heart of contentious probate litigation is the truth that although general principles apply, every case is unique and requires careful consideration and work to piece the story together. Individuals’ personal qualities, values, thought processes and family dynamics all differ. Each of us experiences life through our own lens and there is no “one size fits all approach” in this kind of claim. Careful investigations are crucial at the outset to establish the circumstances of the will making process and to allow a proper assessment of the merits of pursuing a claim. 

The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.

Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts.  If you need such advice please contact a member of our professional staff.

The information published across our Knowledge Base is correct at the time of going to press.