Clare Kelly, Partner
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The choices which people make about their estates can be surprising, hurtful and unfair. Generally speaking a person is free to leave his estate as he wishes and Courts are reluctant to overturn the wishes of a testator, even where the provisions made are unexpected or seem unjust. However, while it is not always easy to challenge a Will, there are some grounds on which this can be done.
A person can challenge a Will if there are grounds for suspicion about how it was made or if the proper formalities were not followed.
1. Lack of proper formalities
Section 9 of the Wills Act 1837 provides that the Will must be in writing and signed, then witnessed by two people who must sign in the presence of the testator. A person must normally be 18 to make a Will. It is not necessary to date the Will, although it is always a good idea in order to avoid any arguments about which is the last Will.
2. Lack of capacity
A Will can be attacked if, at the time of making it, the testator did not have mental capacity. In order to prove the testator did have capacity, it is necessary to show that he met the test set out in the case of Banks v Goodfellow (1870), namely:
- the testator must understand the nature of his act and its effects;
- he must appreciate the extent of his estate;
- he should be able to understand and appreciate the claims which he should give effect to and nothing should bring about a disposition that he would not have made had he been of sound mind.
To challenge a Will on the grounds of capacity, it is necessary to have evidence of the testator’s state of mind when the Will was made. It can be difficult to obtain that after the event, and particularly after death and it is important to get medical records and a report from the solicitor who advised on the Will at an early stage.
3. Lack of knowledge and approval
It is necessary for the testator to know and approve of the contents of his Will. That is normally assumed where a document has been subsequently signed, but could be problematic if, for example, the testator is illiterate or blind. In that case, the person seeking to rely on the Will has to show that the testator did know and approve of the contents and that may require him to show more than that the Will was simply read over to someone before signing.
4. Fraud or undue influence
A Will can always be challenged if it is fraudulent. Anyone trying to challenge on those grounds should be careful for it is difficult to prove a fraud and the burden of proof is high. Courts do not welcome strong allegations such as fraud without good evidence.
A Will can be challenged if the terms are thought to be the result of undue influence by a particular party. This goes beyond simply influencing someone when they make their Will, which is normal, but requires coercion that forces someone to make a Will in particular terms, or fraud.
5. Subsequent revocation
Under s20 of the Wills Act 1837, a Will can be revoked by destruction, by making a later Will or by a subsequent marriage or civil partnership (except where this is in the contemplation of the parties at the time when the Will is made). The testator must have capacity to revoke at the time the Will is destroyed, or the capacity to marry.
These grounds are all possible where there is a Will, and there are reasons for concern about how it was entered into. However, none will help if the Will itself is valid but unfair or there is no Will at all. In those circumstances, it may be possible to challenge the distribution of the estate under the Inheritance Act 1975.
Inheritance (Provision for Family & Dependants) Act 1975
Under the terms of the Inheritance Act, certain classes of person can bring a claim if they feel that the distribution of the estate does not make reasonable financial provision for them. The classes include children, spouses and cohabitants, and others who were financially dependant on the deceased (the Act was sometimes known as the ‘mistresses charter’!) It is necessary for a Claimant to demonstrate their financial needs and resources, and for the Court to weigh those up against the needs and resources of any others bringing a claim and/or against the other beneficiaries of the estate.
An application under the Act can only be made where the Claimant can make out an unmet financial need. For adult children this was traditionally restricted to those who had financial needs which arose as a result of circumstances beyond their control (such as physical or mental health problems which meant that they could not work). The case of Ilott v Mitson (2011) has extended that somewhat, but it is clear the Act can only be used where there is a demonstrable need and not to make the distribution of the estate ‘fair’.
Clare Kelly is a partner in the firm specialising in Contentious Probate matters and Inheritance Act claims. For further information email Clare Kelly or call 020 7940 4000.
