Where There’s a Will… There’s Often a Way to Challenge It

Inheritance disputes over the distribution of assets following someone’s death are commonplace. It is, quite understandably, an area of law which is highly emotive and personal to those directly involved within the dispute. There may on occasion be disputes over the validity of a will; questions could be asked over the deceased's (also referred to as 'the Testator') capacity, whether there has been fraud, or whether there has been undue influence. Such claims have become even more complex in the 21st century. This is due to the advent of technology and the presence of alternative and complex family models. The relevant legislation relating to wills is the Wills Act 1837 ('the 1837 Act').

This article will explore the basics of challenging the validity of a will by focusing on the statutory framework of the 1837 Act and important case law developments. It will distil the principles with the Court uses to decide whether a will is valid, before then providing an analysis of matters of concern and the takeaway points from the case law developments. It does not propose to be a complete work on the law of wills.

The issue of exclusion from a will does fall outside of the scope of this article, however, this has been previously written about and can be found here. This post should not be intended to be legal advice and should not be construed as such; it is for information and educational purposes only and therefore readers are always strongly encouraged to seek professional legal advice for their own matters.

This article will explore the following ways, in turn, in which a will can be challenged:

• Want of Due Execution (failing to comply with the 1837 Act);

• Lack of Capacity;

• Undue Influence;

• Fraud;

• Revocation; and

• Forfeiture.

  
  

The Law

Want of Due Execution

The first ground relates to the formalities of the will itself. The relevant provision is section 9 of the 1837 Act, which states no will is valid unless it is in writing and was signed in a particular way. The most common scenario will see the Testator signing the end of the document in the presence of at least two (but more can be present, if desired) who are present at the time. Those two (or more) witnesses will then also sign the will in the presence of the Testator. Generally, the witness cannot benefit from the will as is made clear in the 1837 Act. There are some limited exceptions to this. If the will falls short of this, it does not invalidate the entire will, just the matters affecting the witness in question. When it comes to "witnessing" the will, case law indicates that what is important is visual presence and a clear line of sight is needed. In essence, the Testator and the witnesses should be able to see each other. The Courts are alive to this as can be seen in Baker v Hewston [2023] 1145 (Ch), where watching the Testator sign the will through a window of a car was sufficient.

There are important details to be aware of in when it comes to signatures. The Testator's signature must be an original one: case law which states that photocopies are not sufficient (Lim v Thompson [2009] EWHC 3341 (Ch)). At the time of writing, there is no case which has allowed a typed or electronic signature to be held valid for these purposes. The Testator, can, however, sign by way of a thumbprint (Re Parsons, Borman and another v Lel [2002] WTLR 237) or by using a stamp which bears their name (Jenkins v Gaisford (1863) 164 ER 1208).

There is a further crucial element to ensure that the will is executed validly: the Testator must have been intended by their signature to give effect to the will and the witnesses to the Testator's signature must attest or acknowledge in the correct sequence. Often, the Testator will sign at the end of the will, above the witnesses' signatures; this is to avoid uncertainty about the Testator's intention, which may give rise to enquiries on probate being granted.

However, where another person signs the will at the Testator's direction, the Testator must give some positive communication (verbal or non-verbal) of it: Barrett v Bem and others [2012] EWCA Civ 52.

Challenging under the ground of lack of due execution can be difficult to succeed on. This is because only the strongest evidence can displace the presumption that the will was validly executed shall be sufficient. However, what constitutes the "strongest evidence" is on a sliding scale and is dependant on how strong the evidence is in support of the fact the will was validly executed (see: Royal National Institute for Deaf People and others v Turner [2015] EWHC 3301 (Ch)).

Lack of Capacity

When a person executes their will, they must at that time have the mental capacity to do so.

The test that the Court applies over testamentary capacity was first established in Banks v Goodfellow (1870) LR 5 QB 549. It can be summarised as follows:

• The Testator must understand the nature of the act of making a will (and its effect);

• The Testator must understand the extent of the property which they are giving away in that will;

• The Testator must be able to comprehend and appreciate the claims of those who might be beneficiaries; and

• There must also be no disorder of the mind poisoning the Testator's affections or perverting their sense of right or preventing the exercise of their natural faculties (and there can be no delusions to influence their will in disposing of their property).

If a will has been executed, and attested to, in the manner prescribed by law (as described above in the Want of Due Execution section), and it appears to be rational, there is a presumption that it was made by someone who had capacity to do so. This presumption can, however, be challenged by evidence which is to the contrary. If evidence is produced which suggests that the presumption should be discharged, the Court must decree against the will's validity. This is unless the evidence on the whole is sufficient to properly establish that the Testator was "of sound mind" when they executed the will: Symes v Green (1859) 1 Sw & Tr 401, Sir C Cresswell.

Examples of cases:

• The High Court in Key v Key & Others [2010] EWHC 408 (Ch) found that severe bereavement can invalidate a will by destroying testamentary capacity. The Court ruled that an elderly farmer, suffering from acute grief and depression shortly after his wife's death, lacked the capacity to make a will which fundamentally changed his estate distribution.

  
  

• In Simon v Byford [2014] EWCA Civ 280, the Court of Appeal clarified the test and made an important distinction: the test for testamentary capacity depended on potential capacity to understand and was not to be equated with memory.

  
  

• In Hughes v Pritchard [2022] EWCA Civ 386, the Court of Appeal overturned a High Court decision to refuse a grant of probate of a will for lack of testamentary capacity, although the solicitor who drafted the will and the doctor who assessed capacity had concluded that the deceased had testamentary capacity at the time of making the will. The Court of Appeal found that the trial judge had not given proper weight to the evidence of the solicitor and the doctor. The High Court's conclusion was held to be outside the range of reasonable conclusions open to it on the evidence.

The following principles apply to issues of capacity:

• If the Testator's capacity is raised as an issue, the burden of proof remains with those seeking to propound the will.

• The Mental Capacity Act 2005 and its effect are limited: the High Court has outlined that the test remains the common law test under Banks v Goodfellow and the Mental Capacity Act 2005 does not apply. This is supported by other leading legal commentators (such as Theobald on Wills, 20th Edition).

• Under the Civil Procedure Rules ('CPR'), any allegations relating to the Testator's capacity must be pleaded specifically and particulars of the facts and matters relied on must be given. It is therefore something that cannot be raised later on or in general form.

  
  

• Strong evidence is required to find that a Testator lacked capacity when an experienced solicitor contemporaneously recorded his view that she had capacity: Hawes v Burgess and another [2013] EWCA Civ 74.

• Disputes about the capacity of an elderly or seriously ill testator can be avoided or reduced when preparing a will. For example, if practitioners arrange for a medical practitioner to confirm that the Testator has the requisite capacity and make a contemporaneous record of their examination and findings. There are, of course, practical issues for which arise, especially where the Testator has only a few days to live. These issues have been recognised by the courts.

Undue Influence

Undue influence is when a person uses their power or authority to unfairly influence another's decision(s). The validity of a will can be defective by undue influence as it can deprive a person of their free will and consent. When an allegation of undue influence is made, the burden of proof rests on the person making the allegation. There are two types of undue influence: actual and presumed.

There is a high bar to the finding of undue influence in the testamentary field. The Courts have stated themselves that there must be reasonable grounds to support such an allegation and such decisions will not be made lightly: Henein v Laffa [2015] EWCA Civ 700.

Further, the CPR requires that any allegations that the execution of a will was obtained by undue influence must be pleaded specifically and particulars of the facts and matters relied on must be given. A failure to do this could be critical to a case.

Fraud/Forgery

This is when the will itself is said to be forged by another person and then passed off as the original document. Much like undue influence, allegations of fraud should be pleaded specifically and particulars of the facts and matters relied on must be given; the CPR explicitly requires the same.

It is also not uncommon to see cases where a person sways the Testator's mind by making dishonest comments about another's character where the affected person would otherwise be a natural beneficiary. If the allegation of fraud is made out, the will is held to be invalid. The test for fraudulent calumny was considered in Christodoulides v Marcou [2017] EWHC 2691 (Ch). In essence, the person challenging a will on this basis must show, on the balance of probabilities (i.e. the civil standard) that the calumny induced the Testator to change their intentions. The test does not require the Court to conclude that there must have been no other reason operating in conjunction with the fraud for the Testator to change their intentions. If there were other possible explanations for the Testator's change of mind, if the Court was nonetheless satisfied that the calumny did induce the will, then the claim would succeed.

Revocation

A will can be revoked in a number of ways, which include the following:

• If the Testator gets married or enters a civil partnership after making their will. This is subject to a limited exception where the Testator was expecting to be married to a particular person and they intended that a disposition in the will should not be revoked by that marriage.

• If the Testator's marriage or civil partnership is annulled or dissolved unless the will states to the contrary.

• Writing another testamentary document (such as a new will). This will have the effect of replacing the old will.

  
  

• The destruction of the will. This relates to "the burning, tearing, or otherwise destroying the same" and focuses more on the physical condition of the will.

Forfeiture

An often seen situation in legal fiction and television dramas: a beneficiary cannot gain anything from the will if they have unlawfully killed the Testator, or unlawfully aided, abetted, counselled or procured the Testator's death. It has been put on a statutory footing as found in section 1 of the Forfeiture Act 1982. This is not an absolute bar, however. The forfeiture rule can be modified by the Court where it is satisfied that (other than where the beneficiary has been convicted of murder), having regard to the conduct of the beneficiary and the deceased and to such other circumstances as appear to the Court to be material, the justice of the case requires it.

The cases where this is likely to be relevant are:

• During a suicide pact between two people, one died and the other, who benefited from the death, survived;

  
  

• Where the beneficiary had aided and abetted the Testator's suicide;

  
  

• In tragic instances, the rule has been altered in circumstances where an elderly husband smothered his wife rather than see her taken to a care home when he could no longer look after her and then committed suicide; and

• Trips assisting the Testator to Switzerland to visit the Dignitas clinic.

Interestingly, Parliament has gone to the extent of passing legislation to explain where the beneficiary's interest should pass in such circumstances in the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011.

Analysis

• There are a number of avenues to challenge the validity of a will.

• The case law on capacity is in abundance; it is clear that the Mental Capacity Act 2005 has not discharged the original test under common law.

• To avoid issues over capacity arising later on, it may be advisable for practitioners to have the Testator medically assessed when they wish to write or amend their will.

• Will validity challenges face different time limits depending on the specific grounds. Disputes involving fraud or forgery may be pursued later than other claims given the nature of the claims. However, other challenges, such as lack of capacity or undue influence, should ideally be commenced soon after discovering grounds for dispute.

• Specific and careful pleading of the facts and allegations is critical. CPR 57.7 is very clear and applies to allegations of want of due execution, undue influence, fraud, and lack of capacity. On top of this, strong evidence to support those assertions is likely to be necessary. A failure to do so could be fatal to the claim.

  
  

• A Defendant must state which allegations in the Particulars of Claim are denied, admitted, or which they require the Claimant to prove.

• The 1837 Act can be criticised as being significantly outdated; much has changed since its enactment. The rules for the purposes of witnessing and executing a will, whilst strict, do not reflect modern reality. Indeed, the Law Commission’s final report on Modernising Wills signals the most significant reform in nearly 200 years. The proposals include: the recognition of electronic wills, updating capacity tests and abolishing that marriage automatically revokes a will. Whether those proposals are accepted and implemented is a different issue altogether. They do, however, provide an opportunity to modernise the legislation but will not be without their difficulties.

• The forfeiture rule does not have a blanket application, and therefore requires a degree of nuance in its approach. Often, such cases are likely to require a sensitive approach and also substantial evidence of the relationship between the Testator and beneficiary. In circumstances where the forfeiture rule does apply, Parliament has made the destination of the beneficial interest clear.

Please note that our posts should not be intended to be legal advice and should not be construed as such; they are merely discussions and therefore readers are encouraged to seek professional legal advice for their own matters.