Challenging a WillApril 29, 2015
There appear to be increasing numbers of challenges to Wills. The most common challenges are based upon allegations of lack of testamentary capacity at the time that the instructions were given for the Will and undue influence. There are other challenges, including lack of knowledge and approval and proprietary estoppel (promises made by the Testator before his or her death in relation to assets in the estate). A Will can also be challenged because it was not executed in accordance with the formalities required by law.
In my experience the most common challenges typically relate to allegations of lack of testamentary capacity and undue influence. An allegation of undue influence is very difficult to prove. People are entitled to persuade others. The influence must be ‘undue influence’ and each case will turn on its facts. There is also a considerable risk in pursuing a case alleging undue influence because if the allegation fails, it is likely that a Court will make the ‘accuser’ pay the costs of any proceedings. Persons entering into contested Will proceedings should not assume that the costs will be paid from the estate and should always remember that even if costs are ordered from the estate, that those costs might deplete the estate to such an extent that the ‘fight’ and cost of it can be disproportionate to any potential benefit.
A lack of testamentary capacity allegation is judged by a test in an old case -Banks v. Goodfellow – 1870. The Testator must have known the effect of his actions, the extent of his estate and the identity of those who might expect to receive part of his estate. The determination will turn on a number of facts and it should not be assumed that simply because a Testator had a form of dementia (e.g. Alzheimer’s or vascular dementia) at the date of giving instructions that he or she did not have testamentary capacity. The medical records will not be solely determinative on the issue. People with dementia can have lucid periods when they would most certainly pass the Banks v. Goodfellow test.
A primary consideration sometimes overlooked by parties in the intensity of the moment when instructions are taken in potential Will cases is the question of whether or not there is any real point in challenging a Will. For example, if Mr. Smith successfully challenged his father’s Will that left everything to the cat shelter only to find that the previous Will also left everything to the cat shelter, then Mr. Smith’s efforts would clearly be quite pointless. It is therefore important to look at previous Wills and what the effect would be of a successful challenge.
This is a complex area of law and you should seek advice from a Solicitor with experience and training in this field.
If you require help in regard to a challenge to a Will, please contact Keith Hardington on 01756 700200 or [email protected].