The general position in the United Kingdom is that an adult of sound mind is free to leave their estate in accordance with their wishes.
There will be occasions (more frequently in the case of blended families) where there is concern and suspicion that a deceased’s Will does not represent their genuine wishes. There are several well-established grounds for challenging the validity of the Will, namely:
- Lack of the requisite mental capacity;
- Want of knowledge and approval of the contents of the Will;
- Undue influence;
- Fraudulent calumny;
The well-established test to be applied in determining whether someone has testamentary capacity is that set out by Cockburn CJ in Banks v Goodfellow (1870) which stated that a person making a Will:
“a. Shall understand the nature of the act and its effects;
- Shall understand the extent of the property of which he is disposing;
- Shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object;
- That no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties.”
This test remains despite the coming into force of the Mental Capacity Act 2005.
It is good practice in order to avoid a challenge on the grounds of want of capacity to comply with the “Golden Rule”. Briggs J (as he then was) in Key v Key  summarised the substance of the Golden Rule as being:
“When a solicitor is instructed to prepare a Will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings…”
Knowledge and Approval
It is imperative that the person making the Will knew and approved of its contents and its effect when the Will was signed. Normally proof of instructions and reading over the Will will be sufficient to rebut a suspicion of want of knowledge and approval. The Court requires to be satisfied that the person understood they were making a Will, took a conscious decision to make it, and understood and approved its terms.
It may be possible to rectify a Will that fails to properly record the testator’s wishes as a result of a clerical error or failure to understand his/her intentions. Claims of this nature must be brought within 6 months of the grant of probate being extracted.
Undue Influence/ /Fraudulent Calumny/Forgery/Fraud
The above are all forms of fraud. Whilst heard in the Civil Court the highest quality evidence will be required in order to succeed. In the absence of such evidence, adverse costs consequences are likely to follow if such a claim fails.
For the purposes of this article, I focus on undue influence. However, for the sake of clarity, fraudulent calumny is where person A poisons the Will maker’s mind against person B by casting dishonest aspersions on person B’s character, when person A knows the aspersions to be untrue (or does not care whether they are true) in order to reduce or eliminate person B’s entitlement under the Will.
A useful summary of the requirements for undue influence was set out by Lewison J (as he then was) in Edwards v Edwards  and is as follows:
- In a case of testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;
- Whether undue influence has procured the execution of a Will is therefore a question of fact;
- The burden of proving it lies on 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 modern law, this is perhaps, no more than a reminder of the high burden, even on the civil standard, that a Claimant bears in proving undue influence as vitiating a testamentary disposition.
- Undue influence means influence exercised either by coercion, in the sense that the testator’s Will must be overborne, or by fraud;
- Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure that causes a testator to succumb for the sake of a quiet life if carried to an extent that overbears the testator’s free judgment, discretion, or wishes, is enough to amount to coercion.
- The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the Will. The Will of a weak and ill person may be more easily overborne than that of a hale and hearty one.
- The question in the end is whether in making his dispositions, the testator has acted as a free agent.
The Recent Case of Jones & Others v Jones decided on 16 June 2023
This case concerns the estate of Daphne Penelope Jones deceased (the “Deceased”). On 4 July 2021, the Deceased signed a Will appointing her daughter Ceri Jones as her executor and provided that Ceri Jones was to be the sole residuary beneficiary. The Deceased passed away in hospital on 16 September 2021. The cause of death was stated to be COVID, stroke, vascular dementia, and heart failure.
The validity of the Will was challenged by the Deceased’s other surviving children namely Catherine Jones and Jacky Jones and the children of the Deceased’s daughter Vicky O’Gara who had predeceased her.
The Will was challenged on the grounds of lack of testamentary capacity, lack of knowledge and approval, and/or undue influence by Ceri Jones.
Given the high burden of proof and the potential cost risks of claiming undue influence clients are generally advised if at all possible to rely on one of the other grounds for challenge. Unusually in this case, His Honour Judge Jarman KC found that the Deceased did have capacity to sign the Will and that although there were suspicious circumstances (being that the Will was prepared and executed without a solicitor and without a medical examination at the time), having regard to all of the evidence the suspicion was dispelled. It was found that the Will was short and straightforward, and the Deceased understood its contents. HHJ Jarman did however find the Will to be invalid on the grounds of undue influence. Whilst there was no direct evidence of such influence HHJ Jarman recognised that in such cases “there rarely is”. Instead, “undue influence is more usually established by inference from all the circumstances”.
HHJ Jarman found that considered as a whole, the facts of the case were “inconsistent with any other conclusion.” In reaching this decision HHJ Jarman had regard to the following factors:
- From when the Deceased’s daughter Vicky received the terminal diagnosis, Ceri Jones formed the belief that she should inherit the Deceased’s home.
- Before Vicky’s death, the Deceased’s settled intention was to leave her home to her four daughters, and thereafter that Vicky’s share should pass to her children.
- The Deceased was devastated by her daughter’s death and was probably still deeply in the grieving process when she signed the Will.
- When Ceri Jones moved in with the Deceased, she increasingly isolated her from other members of the family.
- Ceri Jones reacted angrily and in front of the Deceased when the Deceased’s brother was discussing with her making a Will that shared the house.
- It was likely that Ceri Jones told the Deceased that her two sisters had taken money and used her credit cards without authority when this was not the case. On this point, the expert, Dr Series, commented that a person with dementia is more likely (because of cognitive impairment) to accept what they are told.
- When the Will was signed and for at least two to three months beforehand, the Deceased was both physically and mentally vulnerable and dependent to a substantial extent solely upon Ceri because of the isolation. Her physical vulnerabilities included serious mobility and hearing issues.
- In evidence, Ceri Jones sought to distance herself from the Will making process. This was found to be inconsistent with the contemporaneous evidence of other witnesses.
- The Will was signed without involvement of a solicitor or an up-to-date medical assessment. This was found to be particularly surprising given that both a solicitor and a doctor had been involved in instructions for a Will only three or so months previously.
- After the Will had been signed, it appeared that Ceri Jones was instrumental in her mother writing to other members of the family to limit contact to written communication and that this was done “in the hope that this might avoid any inquiry into the making of the Will”.
It is no secret that in order to succeed in an undue influence claim there is a heavy evidential burden. Influence is normally exerted in private and without the presence of witnesses, making it difficult to gather the evidence required. However, where the evidence paints a consistent picture that demonstrates that the person making the Will did not do so as a free agent, but instead because their volition had been overcome (without convincing their judgment) then there is a prospect of success.
Every case is different and careful investigations and information gathering will need to be undertaken to ensure that the Court is provided with the relevant facts. This is likely to include obtaining witness statements from those who knew the Deceased well and it is especially helpful where those witnesses can demonstrate that they have nothing to gain from the proceedings. Anything else which demonstrates the vulnerability of the Deceased is also helpful for example if they are frail, elderly, unwell, suffering a bereavement, or an addict.