Contested Wills & Probate


Contested Wills remains a significant issue for individuals and charities with increasing property prices and estates, together with a greater willingness of disappointed parties to challenge Wills. The legal position can be complicated and early advice is often essential.

The grounds on which a Will can be challenged have remained consistent for many years and include fraud, lack of testamentary capacity, undue influence and want of knowledge and approval. The most common challenge will be lack of testamentary capacity or put another way, a claim that the testator lacked the requisite mental capacity required to make a Will.

When considering mental capacity, the courts are required to apply some fairly old case law at times. The principal test goes as far back as 1870 and this has even survived the statutory definition introduced by the Mental Capacity Act 2005. The case of Banks v Goodfellow essentially sets out a 4-limbed test for mental capacity provided that:-

1. The testator must be capable of understanding the nature of his act and its effect;

2. He understand the extent of his property and money;

3. He understands the claims to which he ought to give effect ;

4. He should not be suffering from any disorder of the mind which might prevent the exercising of his natural faculties.

Where a Will has been professionally prepared, the solicitor should take steps to satisfy him or herself that the testator has the requisite mental capacity. In the majority of cases this will be straightforward, but this is not always the case with elderly people or those that suffer from some form of mental disability. Where in doubt the solicitor should follow what is known as the “golden but tactless” rule and obtain proper medical opinion.

The traditional battleground between beneficiaries has been establishing whether someone was suffering from some form of disorder at the time such as dementia, which deprived them of the capacity required. It is sometimes a grey area as although someone with full dementia is very unlikely to have mental capacity, someone with minor dementia might. Medical evidence will often assist. What is more difficult is where there is no particular medical evidence but the person’s behaviour is at odds with what one would expect as a rational outcome. It is these cases supported by a high profile decision such as Sharpe v Adam (2005) that are at the difficult end of the spectrum. Someone who satisfies the first three limbs of the test, but nevertheless suffers from delusions which lead them to make irrational provision can sometimes lead to challenges and the setting aside of what might appear to be a valid Will.

Often individuals are pitted against charities. Sometimes the individuals will be close family members who have expectations dashed by a Will that makes unexpected provision. Charities have a statutory duty to maintain income and promote legacies and cannot simply agree to a Will being set aside without very good reason.

It is vital to act early. Caveats can stop a Grant issuing although these are sometimes abused by a potential claimant. There is a pre-action protocol for all types of disputes and this can be adapted in probate disputes. The Association of Contentious Trusts and Probate Specialists (ACTAPS) of which Andrew Carswell is a member, has its own code for dispute resolution.

Exchange of early information and documents and then reasoned argument is the best approach in the early stages. Alternative Dispute Resolution, typically Mediation may follow or sometimes just sensible meetings between the parties can be as effective. Disputed Wills can be expensive to resolve, but with co-operation and proper application of the issues, disputes can often be resolved at an early stage. It is rare for court action to be taken but sometimes this is necessary. Legal representation is essential at this stage and preferably beforehand.