The Bitterest Dispute – Contesting A Will

According to probate documents, Lady Lucan, the wife of Lord Lucan who vanished 40 years ago after murdering the family nanny, cut her children out of her Will because they lacked “good manners”.

She left her entire estate to the homeless charity, Shelter.

Lady Lucan had been estranged from her children for over 30 years.

The contents of a Will need not be so dramatic to cause a person to contest its contents.  And with the rise in house prices over the past 15 years, meaning estates of ‘ordinary people’ are often valued at close to a million pounds and over, the frequency of Wills being contested has dramatically increased.  However, the emotional impact of these cases should not be underestimated, and it is essential to instruct an experienced solicitor to advise you on the risks of challenging a Will, both financially and in relation to your family relationships.

Who can challenge a Will?

Anyone who has a beneficial interest or a potential beneficial interest in the deceased’s estate has the right to challenge a Will.  Often, those who contest a Will are the surviving relatives of the deceased.

Depending on the nature of the claim, you may only have six months from the grant of Probate to make a claim, so it is important to get early advice.

On what grounds can a Will be challenged?

There are several grounds on which a Will can be contested or the provision made for an individual under a Will can be challenged.  These are:

Execution:

A Will must be executed correctly, in accordance with the Wills Act 1937, section 9 to be valid.

Failure to meet one of the following requirements can render a Will invalid:

  • The Will is not in writing
  • The Will was not signed by the testator in the presence of two witnesses
  • The witnesses failed to sign the Will in front of the testator
  • The witnesses or their spouses benefit from the Will

Undue Influence

Making a claim of undue influence is essentially arguing that the person making the Will (the testator) has been forced into making it.

To prove undue influence, you would have to show that they were coerced, manipulated, deceived or bullied into drafting a Will which benefits the person applying the undue influence.

The test of undue influence is high and each case turns on its facts.  Threats or use of physical violence would qualify as undue influence, as would refusing to provide basic care.  However, pressure of any kind, if proven, may amount to undue influence as can the poisoning of the testator’s mind against a third party (known as fraudulent calumny).

Lack of Capacity

The common law test for testamentary capacity was set out in Banks v Goodfellow[1] as follows:

“It is essential to the exercise of such a power that a testator [a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

To prove the testator lacked capacity, you will need to provide evidence that shows they lack capacity at the material time, however the fact that the deceased may have been suffering from mild to moderate dementia at the time they executed their Will does not automatically render it invalid. Again each case will turn on its own facts and evidence will be key, such as the deceased’s spouse, cohabitee or children.

Deathbed Wills, i.e. Will’s made by an individual on their deathbed, often give rise to questions of capacity given the timing of them and can sometimes also lead to questions of undue influence.

The validity of a Will may also be challenged on the basis of want of knowledge and approval and forgery.

Provision under the Will

Under the Inheritance (Provision for Family and Dependants) Act 1975, various categories of people can make a claim once the qualifying criteria have been met if they feel that reasonable financial provision has not been made for them in the testator’s Will, or under the Intestacy Rules if they die without a Will.

One of the most recent high profile and long-running cases concerning a claim under the Inheritance (Provision for Family and Dependants) Act 1975 was Ilott (respondent) v The Blue Cross and others (Applicants)[2], which went all the way to the Supreme Court.

In this case, the testatrix, Mrs Jackson, had one daughter, Mrs Ilott.  They had been estranged for approximately 26 years preceding Mrs Jackson’s death in 2004 because Mrs Jackson disapproved of her daughter’s decision to leave home at the age of 17 to live with the gentleman who became her husband, with whom she had five children.  Mrs Ilott had always thereafter lived independently of her mother but in straitened financial circumstances such that she was dependent upon state benefits, while her husband earned a modest living.

In her last Will, Mrs Jackson left most of her money to various charities and made no provision for her daughter.

Mrs Ilott challenged the Will under the Inheritance (Provision for Family and Dependants) Act 1975, claiming her mother had failed to make adequate provisions for her.

At the first instance, the court agreed with Mrs Ilott and awarded her £50,000.  She appealed, and the Court of Appeal awarded her £163,000.

This decision was then appealed by the charities who were the beneficiaries to the Will and the Court of Appeal’s decision was overturned by the Supreme Court, who reinstated the original award of £50,000.   The Supreme Court held that the 1975 Act requires an assessment of what ‘reasonable provision’ should be made, not a hypothetical standard of provision.

The judgment makes clear that any award made under the Inheritance (Provision for Family and Dependants) Act 1975 should be for maintenance, not capital.  The Supreme Courts decision also shows a clear return to the long-held principle of testamentary freedom in English law.

As Mr Justice Oliver famously said in Re Coventry[3]:

“an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases”. 

It is important to recognise that cases surrounding challenges to Wills and claims under the Inheritance (Provision for Family and Dependants) Act 1975 are all dependant on their individual facts so it is important to take legal advice early if you believe you may have a claim.

Bennett Griffin are award winning solicitors based in West Sussex with offices in central Worthing and Ferring.  Our experienced and specialist solicitors offer a comprehensive service and will work with you in an honest, considered, and practical manner.  Our Contentious Wills, Trusts and Probate department is able to advise and assist you in relation to contesting a Will or bringing a claim under the Inheritance act.  Please contact us on 01903 229 999 or by email at info@bennett-griffin.co.uk for more information.

The information contained in this article is for general guidance only and is not intended to be legal advice. Professional advice should always be taken on the application of the law in any particular situation.

[1] 1869-70 L.R. 5 Q.B. 549

[2] [2017] UKSC 17

[3]  ([1979] 2 All ER 408, [1981] Ch 461)