If a will does not include the true wishes of the person making the will, or if the will has not been executed correctly, it may be invalid and can, therefore, be contested. Our guide takes you through the grounds for contesting a will.
There are several grounds for contesting a will including:
Wills Act 1837
The first thing to determine is whether a will is valid, and to identify whether the will has been completed correctly.
Since the will in effect disposes of a person’s entire estate, property and goods, it has to comply with several requirements of the Wills Act 1837 in order to be valid. The first requirement being that the person making the will must be aged at least 18 years when signing the will.
To be valid, a will needs to:
- Be in writing and signed by the person making the will.
- The person making the will must have signed it with the intention of creating a valid will.
- Two people must witness the will maker’s signature. Those witnesses must either be present when the will maker signs or, the witness must be told by the will maker, that is his/her signature.
- The witness then either signs having seen the will maker sign, or signs in the knowledge that it is the will maker’s signature on the document and that the will maker did signed it, with the intention of creating a valid document.
The above parts of Section 9 of the Wills Act 1837 are broken down in more detail below.
Be in writing and signed by the person making the will.
It is understood that any form of writing is accepted. Therefore, handwritten, typewritten or a will printed in any form is accepted. No specific material is required either and therefore, paper, cloth or almost anything is recognised, providing it can be produced to a Probate Registry. It has even been suggested that a wall or an egg shell would actually be OK!
In addition, the will needs to be signed by the person making the will. The purpose of this signature is to authenticate the document and confirm the contents match the intentions of the person making the will. The person’s signature can be in any form as long as it signifies their intention. A scrawl or personal stamp or their initial seal have been recognised as being a valid signature. More recently, the person’s thumb-print was recognised as his signature re Parson [2002].
What if the person cannot physically sign?
There may be situations where the person making the will is blind or paralysed which may affect their ability to sign their will. In such circumstances, a will may still be validly executed by another person on behalf of the person who made the will. However, clear evidence is required confirming that the signing was done under the direction of the person making the will and legal advice should be sought.
Intention of the person making the will
The signature of the person making the will is evidence of their intention. For deaths before 1 January 1983, a will had to be signed “at the foot of each page and at the end of the will”. However, this is not the position anymore. What is required is evidence that the person who made the will intended by their signature to give effect to the will. In the case of Wood v Smith [1993] it was held that where a person uses a standard will form and completes it in his own handwriting, heading it with “My will by XX” but fails to sign at the bottom of each page, the will is still valid as long as there is sufficient evidence that the person intended their signature on the first or last page to authenticate the will.
Witnesses
To be valid, a person’s signature on a will must be witnessed by two individuals who themselves are not beneficiaries. Since the person making the will is disposing of their entire estate, there is an exceptional need for authenticity. The essential requirement is that both witnesses should be present at the time when the person whose will it is signs or acknowledges their signature. It is important to note that the witnesses are not required to acknowledge or read the contents of the will. The presence of the witnesses is merely to recognise that the person’s signature on the document is indeed their signature. It therefore does not matter if the witnesses thought that the document they witnessed was a contract or another legal document.
Signature of witnesses
Once the person making the will has signed or acknowledged their will, the witnesses must sign the will in their presence. It is important to note the witnesses do not need to sign in each other’s presence. In such situations, the will will be recognised as valid.
Presumption of due-execution
A will will be presumed as being duly executed if on the face of it, it is properly executed.
Courts have been and continue to be robust in their application of the presumption of due-execution. In order to contest a will on the grounds of lack of due-execution, strong evidence is required or the court will revert to the application of the presumption.
For example, in the case of Channon v Perkins [2006], although both witnesses were sure they had not signed a document in the presence of person making the will, the court characterised the witnesses’ evidence as a mere failure to recollect. Witnesses therefore need to positively remember specific events where something went wrong with their execution.
It is also helpful if they can be traced to give evidence of lack of due execution. For example, in the case of Murrin v Matthews [2006], the presumption was rebutted because although the will was signed by two witnesses, there was no address given for them nor could they be found. Since the sole beneficiary of the will was “overwhelmingly likely” to have been involved in the preparation of the will, and there was no evidence by the witnesses as to its execution, the will was found to be invalid.
Preliminary steps
If you have strong grounds to suspect that a will is not valid, it is important to take action and legal advice as soon as possible. You may wish to enter a caveat with the Probate Registry to prevent a Grant of Probate being taken out and the assets of the estate distributed. You can also contact the solicitors who prepared the will and request details regarding the will’s preparation and locate the witnesses to the will to find out the circumstances surrounding the execution.
If you obtain strong evidence from the witnesses who can confirm that the will was not executed correctly, you can then make an application to the High Court of Justice asking the court to confirm the will is invalid.
Lack of testamentary capacity
One of the grounds for challenging a will is that the person who made the will (“the testator”) did not have the relevant mental capacity to understand his actions.
Testamentary capacity
A person making a will must be of “sound mind, memory and understanding” when making a will. The legal test applied dates back to the case of Banks v Goodfellow [1869-70] which states, for a will to be valid, the person making it must:
- Understand that they are making a will and the effect the contents of the will.
- Understand the value of their estate and belongings.
- Understand the consequences of including or excluding certain people from their will
- Not be suffering from a “disorder of the mind” which could influence or confuse their views. For example, would the person making the will leave the same gifts to people if they were not suffering from a disorder of the mind?
The law has inevitably moved on from the 1870 case of Banks and Goodfellow, although the principals remain the same, and are covered in more detail below:
Understand that they are making a will and the effect the contents of the will.
The law doesn’t require a perfectly balanced mind. Just because a person making a will was moved by “frivolous, mean or even bad motives” will not make a will invalid. For example, a person is entitled to disinherit their children out of spite without their wishes being challenged on the grounds of mental capacity. This is subject to the individual having “sound mind, memory and understanding” at the time the will was made. The question as to whether a person has the relevant mental capacity is a factual question which is often determined by medical evidence. However, the evidence of close friends and family is also relevant, and a person can be found to be lacking mental capacity based upon their evidence alone.
When contesting a will, problems arise with issues concerning mental capacity where a disease affects the mind over a period of time, e.g. Alzheimer’s. In such patients, it is often the case that on some days they understand matters, and on others, their memory is lacking. To succeed with contesting a will, it must be shown at the time the will was executed; they did not have the capacity to make a will.
Understand the value of their estate and belongings.
A person making a will only needs to have the capacity to understand the extent of their property. It is not the case that they have to have a detailed knowledge of all of their assets and finances. For example, if they have a broad idea of their assets but they not able to give specifics, it will not be possible to contest a will on the basis of mental capacity.
In cases where the person making the will did not understand the extent of the property are very rare. Where this specific heading is raised, it is often in support of other matters concerning the person’s capacity.
Understand the consequences of including or excluding certain people from their will
If the person making the will did not consider leaving part of their estate to a close family member or did not consider a claim against the estate, this may be an indication that the person lacked the necessary mental capacity to understand their actions and it may be possible to contest a will. Such claims may include those in accordance with the Inheritance (Provision for Family and Dependents) Act 1975.
Contesting a will: the presumption of capacity
Mental capacity will be presumed if the person left a will which appears to be rational and contains no irregularities.
If, however, having seen the person’s medical records and spoken to close family members, it is established that the person who made the will had a history of mental illness/confusion or memory loss, it will be for those persons seeking to rely on the document to establish capacity (this was established in the case of Vaughan v Vaughan). For example, if an executor named in such a will is insistent that the will is valid, it will be for the executor to prove that the person who made the will had the necessary testamentary capacity.
Undue influence or coercion
Another ground for contesting a will is that the person who made the will was susceptible to undue influence.
Definition of undue influence
Sir James Hannen defined undue influence in the context of executing a will in the case of Wingrove v Wingrove [1885] as being “to be undue influence in the eye of the law there must be – to sum it up in one word – coercion.”
Coercion “the action or practice of persuading someone to do something by using force or threats.”
Coercion when contesting a will
Coercion may take several different forms. It can cover “physical violence, verbal bullying or simply talking to a sick person who is seriously ill in such a way that that person may be induced for quietness-sake to do anything”.
For example, in a more recent case of Edwards v Edwards [2007], Mrs Edwards was deliberately told incorrect information by one of her children to secure an inheritance, which amounted to undue influence, i.e. “deliberate poisoning of a person’s mind”. The critical question to be determined when contesting a will is whether the conduct is such that it overpowers the will of the person making the will.
Different types of influence
In all cases involving undue influence, except those involving a will, there may be a presumption of undue influence where there is a relationship of trust and confidence with the wrong-doer. Such relationships may include parent/child; solicitor/client; and trustee/beneficiary relationships.
When contesting a will on the ground of undue influence, it is vital to have clear evidence. Historically, no presumption of undue influence exists when contesting a will, although recent cases would suggest the courts are more open to the argument of undue influence. It must be shown that actual undue influence occurred. In such situations, it is for those contesting a will to prove undue influence occurred.
If it can be shown that there is no other explanation on the actions of the person who made the will, other than undue influence, a judge may then find undue influence occurred.
Suspicious circumstances which do not amount to undue influence
Even though there may be suspicious circumstances surrounding the making of a will, people wishing to contest a will and their solicitors should be extremely cautious before contesting a will based on undue influence as the hurdles remain “high”. Examples of where a claim for undue influence in challenging a will have been successful are few and far between.
It is easier to list examples which do not amount to undue influence than those which do. Cases which detail questionable conduct but do not amount to coercion include appeals to family ties or affection, for example, “but, I am your only child”, “I thought we were best friend’s”, “what about everything I have done for you”.
Providing the person making the will is not dominated or overcome, then firm persuasion and heavy family pressures, deliberate concealment and people wheedling their way into the affections of a vulnerable person do not amount to coercion.
Only consider using a claim of undue influence in contesting a will if the following statement is answered positively. If the person were alive today, would he/she say “this is not my wish, but I must do it”?
Coercion by its very nature often takes place behind closed doors and the key witness, i.e. the deceased, is no longer able to give evidence, thus making it difficult to succeed with a claim for undue influence. If there are suspicious circumstances, it may be easier to accomplish with challenging the will on the grounds of “knowledge and approval” or “testamentary capacity”.
Implications
Where a will is successfully disputed, and the court confirms the will is invalid, if there is not an earlier valid will, then the deceased estate will be distributed according to the intestacy rules.
Lack of knowledge and approval
Where a will has been executed in suspicious circumstances, the court must be satisfied that the person making the will understood and approved the contents of their will.
In suspicious circumstances, people wishing to contest a will often raise allegations of undue influence (where they believe the deceased was coerced into making or changing their will) or that criminal activity has taken place. It is often difficult to succeed with such arguments, as the burden of proof is high. An alternative, where suspicious circumstances exist, is to raise a case that the person making the will did not have the necessary knowledge to understand their intention. Therefore, they did not approve the content. The burden of proof for such cases is far less.
Presumption of knowledge and approval
Where a will has been written and executed correctly (i.e. the person wishing to make the will signed the will in the presence of two witnesses who have also signed the will) and they had the necessary testamentary capacity, knowledge and approval will be presumed.
However, there are certain circumstances, which are detailed below whereby it must be proved that the person making the will had the necessary knowledge to understand the content of their will and that they approved the content.
Exceptions to the presumption of knowledge and approval
If the person who made the will is one of the following, the court will require sufficient evidence to prove that they understood and approved the content of their will, namely:
- deaf and/or dumb;
- cannot speak or write or is paralysed;
- blind or illiterate; or
- the will is alleged to have been signed by another person for the deceased at their direction.
Circumstances which excite the vigilance and suspicion of the court when contesting a will
In addition to the exceptions above, while there is a general presumption of knowledge and approval, if the circumstances surrounding the will being executed raise suspicion, it will then be for those who believe the will to be valid to call evidence to dispel the doubts. The higher the suspicion, the greater the burden on the person trying to prove the will to dispel that suspicion. Even if there are suspicious circumstances, if the will is a simple document, it is often easier to prove knowledge and approval.
A classic example of a case in which the last will of the deceased was found to be invalid on the grounds of knowledge and approval is Vaughan and others v Vaughan [2005]. The judge, in this case, found that the facts led to being “bristled with suspicious circumstances”. A beneficiary gave instructions for the will, and the deceased had taken no advice concerning the will. It was suggested that a medical opinion be obtained, but the beneficiary ignored this advice. The deceased did not read over the will at the time it was executed and accordingly, the judge found that the deceased did not have the necessary knowledge and approval.
In circumstances where only part of the will is read by the person making the will but not the whole will, the rules relating to knowledge and approval may only apply to part of the will.
Rectification
Solicitors specialising in inheritance disputes are often faced with disappointed relatives and friends who comment after seeing a will of a loved one that “those cannot be the wishes of the deceased”.
If the wishes of the deceased have, genuinely, not been included within a will, there may be a claim for the will to be amended. Legally, this is often referred to as being a claim for ‘rectification’.
It is well-established law that “… an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases …”. This may result in what means like an odd distribution, but if it is following the deceased’s wishes, it would be difficult to contest the will.
If, however, a will does not include the true intentions of the person making the will, it may be possible to bring a claim for rectification. This can be where the solicitor who drafted the will failed to understand the wishes of the deceased, or a clerical error in writing the will meant the intentions were not correctly recorded.
How to contest a will: rectification
If the court is satisfied that a will fails to carry out the deceased’s intentions, because of a:
- clerical error; or
- failure to understand the person’s intentions,
the court may order that the will should be rectified to carry out the true intentions of the person who made the will.
Clerical error
“Clerical error” was defined in the case of Wordingham v The Roll Exchange Trust Company. It is an error made in the process of recording the intentions of the person making the will.
For example, if the person making the will gave instructions that all their children were to receive an equal share of their estate, but the solicitor only named some of the children, this would be seen as a clerical error. If, however, on the other hand, the solicitor drafting the will misunderstands the law, this will not amount to a “clerical error” but professional negligence.
In practice, it can often be challenging to establish whether a claim for rectification or professional negligence should be pursued. It is crucial to seek legal advice on the specific facts of your case as to whether it is a clerical error or professional negligence.
Failure to understand instructions
If the solicitor drafting the will misunderstood the wishes of the person making the will, and therefore the wrong intentions were recorded, the friends and relatives disappointed can only succeed in a claim to rectify the will if they can evidence the following:
- what the intentions were concerning the specific clauses in the will;
- that the will fails to reflect the deceased’s intentions;
- what were the deceased’s intentions;
- that the solicitor drafting the will misunderstood those instructions; and
- that the failure of the will to reflect the deceased’s intentions was due to a failure on the part of the drafting solicitor to understand those instructions.
Evidence required
From the outset, it will be necessary to obtain a copy of the solicitor’s file together with the solicitor’s comments as to whether the will reflects the deceased’s wishes. If it is apparent from the file that the solicitor drafting the will did understand the deceased’s instructions but misapplied the law, any disappointed beneficiaries will have a claim in professional negligence and not for rectification of the will.
The time limit for seeking rectification
An application for rectification must be brought within six months of the date when a Grant of Probate was issued. Any claim brought after this period will require the permission of the court. The court will take into account the reasons for the delay in seeking rectification and in particular, whether the delay has caused any prejudice and whether the proceedings were pursued efficiently.
Rectification and negligence
Virtually every case of rectification of a professionally drafted will involves an original negligent act by the solicitor who drafted the will. It is well-established law that a disappointed family and friends can bring a claim for professional negligence against the solicitor who drafted the will. It is equally well established that disappointed beneficiaries are under a duty to mitigate their loss which they may do so by bringing an application for rectification.
Forgery and fraud
If the true intentions of the person making a will are not contained within their will, it may be possible to contest a will on the grounds of fraud. Fraud is defined in criminal law as being “an intentional deception made for personal gain or to damage another individual”.
Fraud is rarely pleaded when contesting a will for several reasons. Firstly, by its very nature, fraud often takes place behind closed doors. Secondly, one of the witnesses to the fraud (i.e. the deceased) will no longer be able to give evidence. Thirdly, when pursuing a civil action, the matter is generally decided on the balance of probabilities (i.e. if you prove your case 50.1% you will succeed). In actions involving fraud, there is a higher degree of probability required than usual.
Fraud has sometimes been regarded as being similar to undue influence. The only difference being undue influence involves a degree of coercion, while fraud does not.
Examples of fraud
While fraud cases are rare, there are a few examples where it has successfully used as a ground for contesting a will. Such cases include where beneficiaries have given false information to the person making the will about the character of other potential beneficiaries which has caused the person making the will to leave more or less money to specific individuals. Other examples of fraud include where individuals have impersonated the deceased to execute a will. Such cases are sometimes pleaded as forgery.
Even if fraud has not been committed in the preparation of a will, there are instances where family members who have not been named in a will, have fraudulently destroyed the deceased’s will, intending to gain monies/assets according to the Intestacy Rules.
Alternatives to pleading fraud when contesting a will
Even though there may be suspicious circumstances, a suspicion of dishonesty, or a person benefiting under a will who was instrumental in its preparation, a lawyer may advise not to pursue a claim for fraud when contesting a will. The reason being, the higher the degree of proof required than usual in a civil case. An alternative is to raise an allegation of “knowledge and approval”. This puts the burden of proof upon the person alleging the will is valid to dispel the suspicious circumstances. If this cannot be done, the will will be invalid.
Forgery
If it can be proved that a will in its entirety has been forged or the person allegedly making the will signature has been forged, this will result in the will being invalid.
Evidence required to prove forgery
When disputing a will, the standard of proof needed usually is on the balance of probabilities, i.e. if you can prove your case 50.1% you will win the case. However, as forgery is a form of fraud, a higher level of proof will be required, and therefore, such an action should not be commenced without strong evidence.
From the outset, when challenging a will based upon forgery, it will often be necessary to instruct a handwriting expert to determine whether the signature of the person who made the will is genuine. To produce such a report, handwriting experts often require a considerable number of signatures with which to compare the signature on the contested will (generally in the region of 10-20 signatures). Handwriting experts also request that the original signature samples are available for inspection.
Handwriting expert
If the handwriting expert produces a report in which their conclusions are inconclusive, it is unlikely that a claim for forgery will succeed. Even in cases where a handwriting expert has confirmed that there are reasonable grounds to propose forgery has been committed, if there is other factual evidence to contradict this finding, a court may not find that forgery has occurred. Accordingly, at the outset, if you wish to contest a will, witness statements should be obtained from any relevant witnesses regarding the surrounding circumstances, in addition to a handwriting expert being instructed.
How we can help
If you're looking to contest a will based on any of the above grounds, or you're defending a claim from another person. Our team of solicitors have the experience to help.
