Challenging times for Wills

In recent years the number of people challenging Wills has been on the increase.    This is partly due to the rising number of people who draft their own Wills and making elementary mistakes because they have not taken proper legal advice.

Growing home ownership and rising property values over the last 15 years also increase the chances of disputes as Estates get ever larger.

We are all also living longer so there has been an increase in claims challenging the "testamentary capacity" of the person making the Will at the time it was made. 

Wills can be contested in a variety of ways:

• When the Will has not been properly executed (or is a forgery);
• When the person making the Will did not have testamentary capacity;
• When undue influence has been placed upon the person making the will.

Proper Execution

No Will shall be valid unless:

1. it is in writing and signed by the person making it or by some other person in his presence and by his direction; and
2. it appears that the testator intended by his signature to give effect to the Will; and
3. the signature is made or acknowledged in the presence of two or more witnesses present at the same time.

It is not uncommon to see "home made" Wills fall at this first hurdle.

Testamentary Capacity

Capacity to make a Will may be lacking because of mental illness.  It may be that the person making the Will is under the influence of alcohol or drugs.  Very often a Will may have been made when the person is suffering from dementia. 

Essentially to satisfy the testamentary capacity test the person making the Will:-

1. needs to understand that he is making a Will and that it will have the effect of carrying out his wishes on death; and
2. he must know the extent of his property and what it consists of; and
3. he must recall those who have claims on him and understand the nature of those claims so that he can both include and exclude beneficiaries from the Will.

Undue Influence

Undue influence can occur when pressure is exerted upon the person making the Will to make certain provisions.  Undue influence is a more difficult ground to prove.  One of the major difficulties in establishing undue influence in respect of a Will is that the influencing tends to take place behind closed doors and the courts require that there is direct evidence of it. 

Recent Cases

There have been a number of recent cases where Wills have been successfully challenged.  These include:-

• A wealthy Russian businessman left nearly £10 million to the Conservative Party after he became infatuated with Mrs Thatcher believing that the Tories were a bulwark who could save the world from "bestial monsters".  He tried to cut his relatives out of the Will believing that they were part of an international conspiracy of dark forces out to kill him.  The Court in this case agreed that the deceased lacked the mental capacity to have made his Will and ordered that the bequest be returned to the deceased's dependants.  
• A £2 million stud farm owned by the deceased racehorse trainer Neil Adams was left to his stud manager and head groom.  The Court held that the stud farm was to be returned to Mr Adams' daughters who he disinherited from his Will.  This was after the Judge determined that the Will was not valid due to Mr Adams' declining mental state at the time he prepared the Will.

Even if the Will is valid there are other potential challenges to its terms.  In the UK people are largely free to leave their property, money and assets to whomsoever they like but there are restrictions. 

The Inheritance (Provision for Family & Dependants) Act 1975 provides a Will can be contested if it fails to make reasonable provision for, amongst others, spouses and dependant children.

If you feel you have grounds for challenging a Will we have a specialist department dealing solely with disputed Wills and Trusts.

Tony Cockayne can be contacted on 01392 688688 or tony.cockayne@michelmores.com.