Five Common Misconceptions about Challenging a Will
Contentious Trusts and Probate is an area where no case is ever truly the same, although many share similar hallmarks. Here are five common misconceptions people may have about challenging a Will (and one bonus misconception at the end):
1) “The Will doesn’t include me and cannot be valid”
Sometimes close relatives believe that they can challenge a Will based on the fact that they have been excluded from it. Certainly a surviving spouse, a child of the deceased or a very close relative or friend may understandably feel a sense of injustice, there must be grounds to challenge the validity of a Will. These generally include:
- The deceased lacked testamentary capacity to make a Will
- The deceased was subject to undue influence when making the Will (i.e. coercion from a third party)
- The deceased’s Will was created as a result of fraud or forgery
- The deceased lacked knowledge and approval of the contents of their Will
- The Will was not properly executed by the deceased (as per the requirements in section 9 of the Wills Act 1837).
If you believe you have been unreasonably excluded from a Will, it is always sensible to seek independent legal advice, even if you do not immediately believe that one of the above grounds applies to the case. Sometimes, investigations and expert opinion can shed light on the circumstances and highlight any controversy when the Will was made.
There is also potential for close relatives who have been left out of a Will to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Typically, the claimant is able to claim a sum or settlement of property from an estate if they can demonstrate that they have a maintenance need and it is reasonable for the estate to meet that need. There are other factors that the Court will consider, and accordingly simply having standing to bring this claim does not necessarily mean that it will succeed.
2) “The Testator must have lacked capacity because he/she was ill”
As expert probate solicitors, we often find that those challenging a Will on the grounds that the testator lacked testamentary capacity will focus on a single aspect of the testator’s health, without looking at the testator’s circumstances as a whole. This might include basing their claim on a testator’s dementia diagnosis, or the fact that the testator was taking medication which may have had various side effects. While these two examples could mean that the testator may have lacked capacity, often claimants fail to appreciate that, at times, capacity can fluctuate.
When considering whether a testator lacked capacity to make a Will, it is vital to consider their specific circumstances and apply this to testamentary capacity test, set out in Banks v Goodfellow [1870] LR 5 QB 549, which is as follows:
The testator must:
- understand the nature of making a Will and its effect
- understand the extent of his/her property
- be able to comprehend and appreciate the claims to which he/she ought to give effect
- have no disorder of the mind which
3) “Undue influence happens when someone asks the testator to change their will”
We often see Claimants attempt to challenge a Will on grounds of undue influence simply because they believe someone asked the testator to change their Will. Undue influence can be a tricky concept to define. However, simply asking somebody to consider changing their Will does not qualify as undue influence. While undue influence involves putting pressure on the testator, not all pressure amounts to undue influence. Consider, for example, the situation where one spouse repeatedly reminds the other of the need to change their Wills to include provision for their recently born child – this might amount to pressure or persuasion, but it will likely not amount to undue influence.
The case of Hall v Hall [1868] LR1 P&D 481 established that “persuasion is not unlawful, but pressure which has the effect of overpowering the volition without convincing the judgment of the testator will constitute undue influence”.
This means that the Court will need to see evidence that the testator essentially felt that they had no choice but to go along with the suggestions of the coercer, without necessarily agreeing with them. By its nature, undue influence usually happens behind closed doors, by people in positions of trust, such as a partner, child or carer. This can make it very difficult to prove, and a claimant will need to overcome this evidential burden and therefore, early legal advice is vital.
4) “Fraud is essentially forgery”
Fraud, forgery and often get lumped together, and in fairness, there is good reason for this as they are closely related and there is a lot of overlap. While fraud, forgery and fraudulent calumny all amount to dishonesty, the below explanations explain the differences between them.
- Fraud – this relates to situations where a will is brought about through intentional dishonesty, such as someone impersonating the testator to create a Will with a firm of solicitors or Will drafters. Another example could be by obtaining a testator’s signature on a will through deceit, for example by presenting them with a document and telling them it is something else.
- Forgery – these cases also amount to fraud, but they are more specific in a nature as they relate to the act of creating a fake Will or forging a testator’s signature. They tend to involve homemade Wills more than professionally drafted counterparts and determining whether they are genuine can necessitate the involvement of handwriting experts.
- Fraudulent Calumny – this refers to situations where someone “poisons the testator’s mind” against a particular beneficiary. In other words, these cases deal with those situations where someone intentionally lies or deceives a testator into believing untrue things about a perspective beneficiary, to either have them removed from the Will or to have their share reduced.
While this sounds like undue influence in many ways, the key difference is that where a testator changes their Will as a result of undue influence, they do not believe in the reason for making the change, they just feel that there is no other option. Fraudulent calumny relates to those situations where the testator believes in the reason for changing their Will, albeit their belief has been brought about by the lies or deception of another party.
Whether as a result of fraud, forgery or fraudulent calumny, a Will created under those circumstances may well be declared invalid.
5) “If the testator has signed the Will, they must have approved of its contents”
In order for a testator to make a valid Will, they must have knowledge and approval of the content. Generally speaking, if a will has been correctly executed, then it is presumed that the testator had the required knowledge and approval of its terms.
There are some exceptions to this presumption, such as where the testator has a disability which may affect their ability to understand the Will, for example if they are visually impaired and unable to read the document, or if the Court accepts that there are suspicious circumstances surrounding the execution of the Will. There are examples of the testator not understanding the Will even in circumstances where it has been read and explained to them, as per Gill v Woodall [2010] EWCA Civ 1430 where the testator suffered from extreme anxiety which prevented her from understanding and approving her Will.
As such, less of a common misconception, but more a common error when investigating the validity of the Will is to fully investigate testamentary capacity or undue influence, but spend little to no time considering whether a testator had knowledge and approval of their Will. A claim based on capacity or undue influence alone may fail, whereas, under the same circumstances, a court may be willing to find in favour of an argument that the same testator lacked knowledge and approval.
6) Bonus Misconception – 10% awards in Inheritance Act claims:
While claims under the Inheritance (Provision for Family and Dependants) Act 1975 do not constitute a challenge to the Will itself, which is also something of a misconception, when they are successful, they do result in the distribution of the Deceased’s estate being changed. As such, we felt it only right to include a common misconception we see in these cases; the fabled “Ilott 10% rule”.
In Ilott v The Blue Cross and Others [2017] UKSC 17, the daughter of the deceased brought a claim having been left out of the deceased’s Will in favour of charities. She was awarded £50,000 from an estate worth roughly £500,000 but appealed to the Court of Appeal where her award was more or less tripled. Many at the time took this to mean that the Supreme Court was essentially giving approval to a percentage of 10% for adult children, and sought to replicate this, making offers in line with this “rule of thumb”. While a Supreme Court approved percentage would certainly make things easier, this was not the Court’s intention.
The calculation of what figure constitutes “reasonable maintenance”, the basis of most Inheritance Act awards, depends very much on the Claimant’s personal and financial circumstances and unfortunately, there is no short cut to establishing this. While expressing offers in terms of percentages can be useful for the purposes of negotiating a settlement, any attempt at calculating reasonable maintenance must be made with reference to the Claimant’s actual finances and should be supported with evidence.
If you find yourself involved in a potential Will dispute, we would always recommend taking independent legal advice, and our Contentious Trusts & Probate Team at BRM in Sheffield will be able to help. Please do not hesitate to contact us on 0114 3497 000 or using the contact form below.
