Grounds for contesting a will

Jennifer Russell and Anjali Narshi explain the potential grounds on which a will can be challenged, and steps to take to mitigate risk.

Disputes and confusion can arise among beneficiaries after the death of a loved one, especially if someone is unhappy about the will and distribution of the estate.

What are the grounds for challenging a will in England?

Inheritance disputes are on the rise, with the number reaching the High Court hitting a record 192 in 2020, up from 128 in 2018.

There are various grounds for challenging a will under English law, the most common of which are:

• want of due execution
• undue influence
• lack of mental capacity
• claims under the Inheritance (Provision for Family and Dependents) Act 1975 for reasonable financial provision

Want of due execution

A will can be challenged for want of due execution if there is concern it has not been signed and witnessed correctly.

Whilst there are certain exceptions, for example if the person making the will (the testator) is on active military service, usually the following rules apply:

The testator should sign the will, or if this is not possible they can instead make a mark such as a thumbprint, or direct someone to sign on their behalf in their presence. Most wills must be witnessed by two independent adult witnesses, who should be present when the testator signs the will.
If a named beneficiary witnesses a will, whilst this does not invalidate the will, it does invalidate the gift to them, and so he or she should not act as a witness.

As a result of the Covid pandemic, new temporary rules have been introduced to allow for wills to be witnessed remotely via video calls if physical witnessing is not possible. However, electronic signatures are not permitted.

The lawyer instructed to prepare a will will oversee the signing of it to ensure everything is in order, either by meeting with clients in person (with members of the firm usually acting as witnesses) or by providing detailed instructions as to how the will can be signed at home.

Nothing should be attached to the will at any stage (for example a covering letter attached with a paperclip) as this could leave a mark, suggesting another document was attached to the will when it was signed, potentially leading to queries after the testator has died. It is also important that the will does not show any signs of attempted destruction, such as tears, which could lead to enquiries into whether the testator attempted to cancel the will by destroying it.

If a will fails to comply with these rules, it could be invalid and the estate may pass either in accordance with an earlier will (if there is one) or in line with the intestacy rules (if none exists).

Undue influence

The contents of a will must represent the testator’s true wishes. If a person making a will has been unduly influenced by someone else this could invalidate the will. Whilst this can be difficult to ascertain, a lawyer should take steps to confirm there is no undue influence, for example by seeing the client on their own, away from family members, to check that their wishes for their will are their own.

The test the Court applies is summarised in Edwards -and- Edwards [2007], which explains that undue influence means ‘influence exercised by coercion or fraud’. Coercion is pressure that is so great it breaks the testator’s own free will and they give into the will of the person exerting the pressure, usually for a quiet life and to “keep the peace”.

Therefore, family and friends may make suggestions and try and persuade the testator as to how they should leave their estate, but it will not amount to undue influence unless it can be proved the will no longer reflects the testator’s own true wishes, but instead reflects those of the person exerting the influence.

There is a difference between mere persuasion (which is allowed, although not ideal as it can raise suspicion) and coercion (which is not allowed), meaning the testator may dispose of the estate however they wish (and regardless of how unfair it may seem), so long as they acted as a free agent.

Undue influence claims are particularly fact-sensitive and difficult to prove, not least because the testator, who is the main witness, will have died by the time the challenge is brought, and as acts of coercion usually take place in private when no-one else is around.

Lack of mental capacity

For a will to be valid, the testator must have the necessary mental capacity to put it in place. Broadly, this includes:

• understanding what a will is, and its effects
• understanding the extent of their assets passing under the will
• understanding the moral obligations to people it could be said that they may owe a duty
• having no mental disorder which would influence their will and cause them to dispose of their assets in a way in which they would not otherwise have done

A lawyer should assess these different elements when taking instructions from a client and keep detailed notes in case there is a challenge in the future. If there are any concerns, they may suggest obtaining a report from a professional to assess their capacity.

Issues over the capacity of the testator could invalidate a will. Court cases involving a challenge on the grounds the testator lacked mental capacity to make the will can be costly and, whilst you cannot stop someone issuing proceedings, the chances are that if the steps above are taken progressing to a fully contested trial will be avoided.

Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision

Under English law, a person is free to make a will on the terms they choose, but if certain people connected to the testator feel that he or she has not made adequate financial provision for them, they can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. They include:

• spouses and civil partners (and former spouses and civil partners)
• children (and those treated as a child of the family by the testator)
• financial dependants
• cohabitees who have lived with the testator for at least two years

If successful, a judge can set aside some, or all, of the provisions of the will and order that financial provision be made from the testator’s estate for the claimant.

Whether a claim is successful depends on various factors, such as the wealth of the testator and claimant, and the claimant’s needs.

A lawyer instructed to prepare a will excluding someone from these categories may advise the client to prepare a letter setting out their reasoning to be taken into consideration by the court in the event of a challenge.

The structure of a will can ensure all family members are happy. For example, arguments can arise where a testator has remarried and has children from a previous relationship, with the spouse and children feeling they should benefit from the will. Including an interest in possession trust for the benefit of the spouse during his or her lifetime (or until the spouse remarries, if the testator wishes) means the spouse is entitled to receive income from the testator’s assets (such as interest and dividends from their savings and investments) and occupy the testator’s share of any residential property rent-free during their lifetime (or until they re-marry).

However, the capital value of the assets does not belong to the spouse, and so cannot be given away during their lifetime or by will, so can pass to the testator’s children when the spouse dies or remarries. The trustees can also be given the option to pay or loan capital from the trust to the spouse while they are alive if the testator wishes.

The Inheritance Act is the basis of most challenges because although a testator’s will may be valid on the face of it, a disappointed beneficiary may still consider it unfair. Where there is no will, the intestacy rules may fail to provide for someone such as a cohabitee or stepchild.

A claim under the Inheritance (Provision for Family and Dependants) Act 1975 must be made within six months of a grant of probate. Failure to do so means an application for permission to issue a late claim needs to be made, with reasons why the claim was not made within the time limit. If the court is satisfied, and grants the application, the claim will then proceed to trial.

Our contested wills team

Jennifer Russell is an associate in Lodders’ Private Client department, specialising in tax and trusts, wills and estate planning, for individuals, families and trustees. Anjali Narshi is an associate in the firm’s Dispute Resolution team and a contentious probate specialist, advising clients on a broad range of contested will and trust disputes.

This article originally published on The Gazette website here.