How do you know if a Will is valid? Here are some handy tips on ‘Disputed Wills’

14 Apr 2019

Andrew Carswell is a partner specialising in Commercial Litigation and in particular Contentious Probate and Trust disputes. He provides an overview of some of the situations he encounters where families disagree over the Wills.

The importance of making a Will is often understood, even if it is not followed by everyone. As a result many people of all ages do not have a Will. However, even where a Will is made there can be problems and this is where I am often asked to advise and represent parties.

A professionally drawn Will by a solicitor is normally much safer than a DIY type Will bought from stationers, but this does not rule out disputes. Typically Wills can be disputed on the grounds of lack of mental capacity, fraud and undue influence.

In the context of mental capacity, the law goes back a long way to authorities that started in the 19th century. The case of Banks v Goodfellow (1870) has stood the test of time and requires a person (in legal terminology called the “testator”) to be capable of understanding the nature of his act and its’ effect, understand the extent of his property and the claims to which he ought to give effect. In addition, he should be free from any disorder of the mind which might prevent the exercise of his natural mental faculties.

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 a 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 normally be important. What is more difficult is where there is no particular medical evidence, but the person’s behaviour is at odds with other people’s expectations and what one might expect as a rational outcome. A Will made by 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. It is these cases that are most testing.

Often individuals are in dispute with charities. They may 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 good reason. Every case is different.

Undue influence is a thorny subject. If it can be shown that a Will was procured by undue influence, it is liable to be set aside. The law is quite different to lifetime transactions and evidentially is problematic, as after all, the person who was subject to the alleged influence has died.

The essential element is “coercion”. To make a valid Will, a person must be a free agent. Persuasion, appeals to a person’s affections, claims of pity and in respect of destitution are surprisingly legitimate, provided that they do not overpower the will of the person.

Essentially, the law looks to protect people whose Will is patently not their choice or wish, but that of the person exerting the influence. It can take different forms. Sometimes it may be of the grossest form where confinement or threats of violence can be made. Alternatively, a weak or feeble person in the last few days or hours of life, may need very little pressure.

As ever it is preferable if the Will is professionally prepared, but that is not conclusive because often influence will take place behind closed doors. It is a heavily evidence based situation often mixed with emotional family circumstances. Challenging a Will is not for the faint hearted, but with professional help can be achieved and an acceptable solution obtained. Alternatively a valid Will can be protected from weak claims.

It is vital to act early. Caveats can stop a Grant issuing although these are sometimes a source of abuse. 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 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. Mediation may follow or sometimes just meetings between the parties can be as effective. Disputed Wills can be expensive to resolve, but with co-operation and proper application to 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 before.

Fortunately these cases are not common, but do happen and require careful handling and resolution. Our specialist private client lawyers can provide you with the legal support and guidance you need to reach a conclusion. Don’t hesitate to contact our team today.



Andrew Carswell


Tags: wills