29 January 2018

Dorset Farm in a contested Will case

A recent local contested Wills case has just concluded at court whereby a local farmer and businessman left his entire estate in his Will to his two daughters and wife and nothing to his son.

His son brought a case against the rest of the family on two legal grounds; that the father had promised him the estate and that in any case the Will he signed before his death was invalid for a lack of mental capacity.

In dealing with the promise first, there is a potential but very narrow opening to challenge a Will on the basis that the property that was given away to another was promised to the claimant. To stand a chance of being successful, the claimant must be able to prove that there was in fact a promise; that the promise was relied upon by the claimant and that the claimant had acted upon that promise to his detriment. This is a tough test to pass and is most often unsuccessful.

Capacity means the mental capacity to make a valid Will. A person who makes a Will (the testator) must understand at the time of making his Will what it is that he is doing i.e. the effect that the Will shall have; to understand the entirety of his property that he is disposing of and finally to comprehend and appreciate the claims to which he ought to give effect and he must not be under any delusion as to these facts.

The best courses of action open to someone making a Will to prevent such unhappy circumstances as arose in this case are fourfold:

  1. Make the Will earlier in life rather than later when accusations of mental incapacity will be more easily raised.
  2. Discuss with the beneficiaries what they might be getting and why; if this is a difficult area to discuss with family, a clearly written explanatory letter kept with the Will is often very helpful.
  3. Be careful of giving “promises” and know that an intention to leave property in a Will to someone is not a “promise” and may be easily changed at any time.
  4. Seek professional advice. In this case, the judge praised the actions taken by the solicitor and this contributed to the claim failing.

For more information, support and advice please contact Christine Butterfield on 01305 216205 or