Will Disputes

We act in cases in which Wills are said not to be valid. This can be for a number of reasons. Often the estate must respond to a claim where a Will has been executed but a family member alleges that it is invalid.  

We defend claims on behalf of beneficiaries of a Will which is challenged.  

Where necessary, we also pursue such claims on behalf of disappointed beneficiaries. 

The majority of disputes are based upon the Will being said to be invalid because the deceased lacked the mental capacity to make it. The legal test is based on old case law which was decided long before the recent huge rise in the number of people growing old enough to suffer dementia.

For a Will to be valid, the person making the Will must have had sufficient understanding of his or her assets, of the people who might expect to receive something, and of what a Will is. There must not be anything such as a psychiatric condition which prevented that understanding or caused the person to misunderstand important facts.  

Often a medical opinion is obtained, aimed at confirming capacity or lack of it. Medical evidence created at the time of the making of the Will can be highly important. Other documents such as letters and emails, and the evidence of witnesses such as family members, may be key.  

The hurdle of proving a lack of capacity can be high. The impact of a Will being held valid or invalid can be enormous. Considerable care and expertise by the lawyers are needed in these cases.  

Claims can also be pursued on the basis that the contents of the Will have been brought about as a result of undue influence, usually by a beneficiary under the Will. Witness evidence of what happened at the time when the Will was drafted and then signed will be very important. Such claims are tricky to prove, and passions can be high where this sort of allegation is made.    

An allegation that a Will is invalid is likely to be hotly contested. Substantial assets and money may be at stake. Strong feelings can exist, both in those seeking to uphold the Will and in those trying to challenge it. The precise circumstances in which the Will was written and signed will be very important.

Other disputes about the validity of Wills may arise where it is said that they have not been properly signed or witnessed, perhaps because the signature does not appear to be that of the person who made the Will. The increase in home-made Wills has led to isssues. Some Wills are drawn up by people who are not lawyers and who do not even see the person making the Will, and this has led to more concerns about Wills being valid.  

In any case where there is a concern about the validity of a Will, it is vital to obtain expert advice and assistance. The cost of such claims can be substantial, but the adverse impact of an unwelcome decision as to the Will’s validity even greater. Specialist advice about the strength of a case and as to how to best resolve it on appropriate terms, as cost-effectively as possible, is vital.    

 Time Limits for Inheritance Act Claims

Claims can be made under the Inheritance (Provision for Family and Dependants) Act 1975 by those people who are disappointed at the amount they will receive from a deceased's estate, either under the Will or under an intestacy. They can ask the Court to award them reasonable provision from the estate.    

The time limit for bringing those claims is normally 6 months from the date of the Grant of Probate or Letters of Administration. Time runs from the day after the Grant, giving claimants an extra part of a day. A claim can also be brought before a Grant is made, particularly if the person entitled to take out a Grant is being slow about it.

Section 4 of the Act though gives the Court the power to allow a claim out of time.

When will the Court allow a late claim and what factors will it take into account?

Sometimes the parties enter a standstill agreement while they carry on negotiating, in order to stop the limitation clock from running. Will the Court give effect to those agreements?

The Court has a wide discretion to allow late claims. In the case of Cowan v Foreman, the Court allowed a claim by a widow against the estate of her husband even though the claim was brought 26 years out of time. In Stock v. Brown, a claim was allowed 51/2 years out of time, and in McNulty v McNulty, a claim was permitted 31/2 years out of time. The length of the delay is not, however, the only or indeed the main consideration. The Court will consider 7 main factors:

1. The Court will exercise its discretion subjectively in accordance with what it thinks it is right and proper.

2. The applicant must show sufficient grounds for granting permission out of time. The application will be need to be supported by strong evidence.

3. The Court will consider whether the applicant acted promptly when applying for permission to issue out of time.

4. Were negotiations begun and carried on within the 6 month time limit? Were they real and substantial negotiations which might have led to a negotiated outcome? 

5. Has the estate been distributed? If money has been paid to beneficiaries and spent, that will be one thing. If on the other hand the estate comprises a house which still exists and is owned by the estate, that will be quite different.   

6. If the application were dismissed, would the applicant be able to pursue another remedy, perhaps by bringing a claim against their Solicitor for not acting in time? 

7. Does the applicant have an arguable case, i.e. what are the prospects that the applicant’s case will be successful if it is allowed to proceed?

As to standstill agreements, the Courts have made it clear that whilst it may well be sensible for the parties to enter a standstill agreement so that they can carry on negotiating in good faith with a view to resolving the dispute, those agreements are not binding on the Court. If you are a solicitor acting for a claimant, you should not enter a standstill agreement since it is too risky. If however you are acting for a defendant, you should enter one and perhaps see the claimant come unstuck later when the Court disregards it.

Overall, the Court has a wide discretion to allow late claims. No claimant should, however, place themselves in a situation where they have to rely on the Court’s blessing. Claimants should always issue claims within 6 months of the date of the Grant.   They should never rely on standstill agreements, still less on an ability to bring a claim late where they have simply missed the deadline.

Battens can act promptly to bring claims of this type, and we will always do everything possible to ensure that deadlines are not missed.  

Challenges to a Will - Lack of Testamentary Capacity

There are 4 main challenges which can be made to the validity of a Will:

1. lack of testamentary capacity 

2. lack of knowledge and approval of the contents of the Will  

3. undue influence on the testator (the person who made the Will), and  

4.  fraud.

As to lack of testamentary capacity, the test is set out in the case of Banks v. Goodfellow where it was held that for the Will to be valid, it is essential that the testator:     

(i) understands the nature of the act of making a Will and what its effects are 

(ii) understands the extent of the property of which he is disposing (even though most people make their Wills a long time before they die) 

(iii) is able to comprehend and appreciate the claims, perhaps of family members, to which he ought to give effect, and 

(iV) no disorder of mind should poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties, and no insane delusion should influence him and bring about a disposal of his property which, if his mind had been sound, would not have been made.

There is a test for mental capacity in the Mental Capacity Act 2005, but it is the test in Banks not the Act which governs capacity to make a Will.  

What is required is proof of the capacity to understand certain important matters relating to the Will. It is not necessary to prove that the testator actually did understand certain things, only that he had the capacity to. He may, for example, not have been told or not thought about a certain matter. That will not affect the validity of the Will, provided he had the capacity to understand if he had tried to do so.  

Where a testator is thought to perhaps have lost capacity, the Golden Rule should be followed. Under that rule, it would be sensible for:

  • the Will to be witnessed by a doctor who satisfies himself as to the testator's capacity and makes a record of his examination
  • the solicitor to discuss any previous Wills and the reasons for making a different Will now
  • the solicitor to take instructions from the testator without beneficiaries or any person who might exert undue influence over the testator being present, and
  • the solicitor to take instructions from the testator without beneficiaries or any person who might exert undue influence over the testator being present, and
  • the solicitor to make a detailed note of all this for his file.

The Courts will not normally upset a Will which has been drafted by an experienced, independent lawyer who has seen the client and formed the opinion that the client understands what he is doing. For it to be worth following, that view formed by the solicitor should though be based on a proper assessment and accurate information.  

Where the Will is short and easy to understand, the Court is more likely to find that the testator had capacity to make that Will than where the Will is complicated or deals with a sophisticated set of assets.

The burden of proof is on the person who wants the Will to stand.

Where, however, the Will was duly executed and appears to be rational, the Court will shift the burden of proof and will presume that the testator had capacity.

If, however, there are circumstances that ought to arouse the suspicion of the Court, the burden of proof will shift back to those who want to rely on the Will, and it is then for them to remove that suspicion and to prove that the testator knew and approved the contents of the Will. Suspicion may be aroused where one of the beneficiaries helps to make arrangements for the Will to be created, or where the Will represents a radical departure from previous Wills, or where the testator is vulnerable, perhaps due to weakness of the mind or of the body.

Where a challenge to a Will is being considered, Battens can provide expert legal advice and support to ensure that the Court makes the correct decision as to the validity of the Will.


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