Contentious Probate: Challenging or Contesting the validity of a Will

Just because you don’t like what someone has written in their Will does not mean that you can contest the will.

The grounds for contesting a Will are limited and are:

• The Will is a forgery
• The person who made the Will did not have the capacity to do so
• The person who made the Will lacked knowledge or approval
• The person who made the Will was influenced
• The Will was not correctly executed
• The Will has an error on it that needs to be corrected or rectified

If a Will is forged then it will be invalid. Proving forgery requires showing that the Will that is relied upon was created fraudulently without the knowledge of the deceased, has been altered, either in relation to the date, the provision of the Will or the signatures of the testator (person making the Will) or witnesses.

Contesting a Will on the grounds of forgery is difficult and requires definitive proof.

If someone lacks the capacity to understand the Will that they are making then it can be invalid – this is one of the most common reasons for contesting a Will.

The test for capacity still dates back to the case of Banks v Goodfellow [1870]. In that case, John Banks had been committed to an asylum for a number of years with mental health problems. After he was discharged from the asylum, he continued to suffer from delusions.

It was found that Banks’ Will was valid. Whilst Banks did suffer from mental illness which caused delusions of the mind, these delusions did not influence his decision regarding who should benefit from his estate.

The test for challenging a Will on testamentary capacity was set out in the judgment in Banks v Goodfellow 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.”
More recently, the case of Walker v Badmin [2014] confirmed that this remains the test for testamentary capacity and that the Mental Capacity Act 2005 provides assistance but is not the test.

The Banks v Goodfellow test differs from the test for capacity set out in The Mental Capacity Act 2005 which provides:-
Section 1:

• A person must be assumed to have capacity unless it is established that they lack capacity;
• A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success;
• A person is not to be treated as unable to make a decision merely because they make an unwise decision.

Section 2:-
A person lacks capacity in relation to a matter if at the material time they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain;
It does not matter whether the impairment or disturbance is permanent or temporary; a lack of capacity cannot be established merely by reference to –
(a) a person’s age or appearance, or
(b) a condition of their, or an aspect of their behaviour, which might lead others to make unjustified assumptions about their capacity;
Any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

Section 3:-
A person is unable to make a decision for themselves if they are unable –
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
A person is not to be regarded as unable to understand the information relevant to a decision if they are able to understand an explanation of it given to them in a way that is appropriate to their circumstances (using simple language, visual aids or any other means).
The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent them from being regarded as able to make the decision.
The information relevant to a decision includes information about the reasonably foreseeable consequences of –
(a) deciding one way or another, or
(b) failing to make the decision.

Although Banks v Goodfellow may be a case that was decided a long time ago, it is still good law.

In many cases, it may be necessary to obtain medical evidence to prove that the testator lacked the requisite capacity when the will was made in order to contest the will.

A testator must have “knowledge and approval” of the contents of a Will in order for it to be valid.

Contesting a Will for want of knowledge and approval there must be “circumstances that ought generally to excite the suspicion of the court”.  For example:

1. Spelling mistakes or language in the Will that would not have been used or understood by the testator

2. Untrue statements in the Will

3. A Will that makes provision for a beneficiary who was not known to or close to the testator

4. A substantial change in a Will without a rational explanation

5. The Will is witnessed by people who had an interest in the Will or were not independent

6. There is evidence that the testator lacked testamentary capacity or was being influenced

7. There is evidence of the beneficiary having acted dishonestly, suspiciously or against the interests of the testator or having played a central role in the making of the Will;

8. Unusual behaviour of the testator at the time the Will was made

9. A homemade Will where no professional advice has been sought

10. A Will drafted by a solicitor introduced to the testator by a main beneficiary where there is no other reason for that solicitor to be instructed

The court will require evidence to prove that the testator understood and approved the content of the Will in the event of any claim to contest the Will.  The mere fact of an incapacity such as those listed above will not, of itself, mean the will is invalidated and a contest of the will’s validity would be successful.

In a case contesting a Will in regards to undue influence this can in simple terms be defined as not acting on or deprived of their own free will.

The burden of proof in undue influence cases is high and falls on the person who asserts that there has been undue influence to prove it.

The influence required could be physical in the form or violence or bullying (which may be easier to prove) or mental such as verbal assaults, threats or telling the testator things that are not true. Or reliance on that person for their care or wellbeing.

Undue influence can be very difficult to prove since it usually takes place in secret and the results are often only discovered once the testator has died.

There are strict rules about how a Will is signed.  If those rules are not followed then a Will is  invalid.

The requirements for executing a Will are set out in full in The Wills Act 1837.  The starting point is that if a Will that appears to have been properly executed it will be presumed to have been validly executed until proven otherwise.  This is the “presumption of due execution”.

A will is properly executed if it is signed in the presence of two or more witnesses. Each witness must sign the will in the presence of the testator (although not necessarily in the presence of each other).

Contesting a will to overturn the presumption of due execution there will need to be the strongest of evidence.

In some cases a Will may include an error.  In certain circumstances mistakes in Wills can be corrected by applying for rectification.

A Will can be rectified under Section 20 Administration of Justice Act 1982 which provides that

“If the court is satisfied that a will is so expressed that it fails to carry-out the testator’s intentions, in consequence of a:

1. clerical error; or

2. failure to understand his intentions,

it may be ordered that the will should be rectified so as to carry out his intentions”.

A clerical error is a mistake in recording the words, wishes or intentions of the testator.  A failure to understand the testator’s intentions by the person who drafted the Will can also result in an application to rectify the Will.

In all cases it will be necessary to obtain the file of the solicitor who drafted the Will to establish what instructions were given, how they were reflected in the Will itself and whether the Will is capable of being rectified.

In many cases of contesting a Will due to errors a claim against a solicitor for professional negligence should be considered also.

If someone dies without making a Will they are said to die intestate.

The Estates of people who die without making a Will are dealt with in accordance with the Intestacy Rules that apply at the date of their death – providing for immediate family in strict order and dividing the Estate between classes of family members such as the testator’s spouse, children or siblings etc.

The only basis for challenging an intestacy is by finding a valid Will.  A Will does not have to be recent to be valid, any Will properly executed will be the testators “last Will and testament” even if it goes back a number of years.

 

The first step in contesting a will is to lodge a Caveat to prevent the issue of a Grant of Probate to anyone.  A Caveat is a formal note lodged at the Probate Registry which prevents the issue of a Grant.  Caveats remain in force for a period of 6 months but can be renewed.

While a Caveat is in force, steps should be taken to gather evidence as to the circumstances in which the Will came to be drafted and executed.  It may also be relevant to obtain medical records for the deceased to allow consideration of the testator’s mental capacity at the time they made the Will.

Taking early legal advice is essential – the clock is ticking.

If you are successful in contesting a Will and proving that  it is invalid it will be necessary to look at the last valid Will.

In some cases there is no merit in challenging the validity of a Will if the terms of a previous Will do not benefit you or if they are substantially the same as the Will under challenge.

If there is no previous valid Will then the Estate will be dealt with under the intestacy provisions, the statutory rules that dictate what happens to an Estate if someone dies without making a Will.

Before you embark on a process of challenging a Will it is important to look at what the outcome might mean for your interest in the Estate.

Unfortunately, it not possible to prevent someone from contesting a will. However, there are steps that can be taken to reduce the chances of a will being challenged. These include – consulting a legal professional, including a “no-contest” clause in a will, updating wills regularly and revoking previous wills, registering  and storing wills safely and discuss your will with your loved ones.