There are various ways in which you can challenge the validity of a Will. In most cases, the burden of proof is on the claimant to prove that the Will is invalid.
The four main grounds upon which you can challenge a Will are as follows:
- Lack of Capacity – whether the testator had the mental capacity and was of “sound mind” when making the Will.
- Lack of Knowledge and Approval – did the testator understand what they were doing and did they “know and approve” of the contents of their Will.
- Undue Influence – was the testator being coerced into making a Will, resulting in giving instructions that they wouldn’t have included before.
- Fraudulent Calumny – was the testators’ mind being “poisoned” by someone who may be influencing them to leave more provision to them and less to another person. This is usually done by making false statements about the other person.
A judgement was made at the High Court in respect of the above case in February 2024, where a Will was disputed based on all four of the above grounds.
The claimants were the five granddaughters of the late Frederick Ward (“Fred”). Fred made his Will before his 90th birthday, which consisted of leaving his residuary estate to his two children, Terence and Susan (defendants), in equal shares. The claimants were left gifts of chattels and pecuniary legacies of £50 each.
Fred’s previous Will was in 2011, which at the time his deceased son, Fred Junior was alive. This Will left the residuary estate to Fred Junior, Terence and Susan in equal shares. The claimants challenged the 2018 Will in the hope that the 2011 Will would be declared valid. As a result, the claimants would then receive their late father’s share of the residuary estate.
Lack of Capacity
When assessing whether the testator had mental capacity at the time of making their Will, the Court will look at the case of Banks v Goodfellow [1870] which includes a test to establish whether the testator has mental capacity. The test assesses whether the testator:
- Understands the nature and effect of their Will;
- Has some understanding of the extent of the property of which they are disposing under their Will;
- Is aware of the persons for whom they would be expected to provide for and the potential claims against their estate;
- Is free from any delusion of the mind that would affect their dispositions to those people.
In Gowling v Ward, the court assessed the claim using the Banks v Goodfellow test. Based on their findings from witness evidence and expert opinions, the Court found that Fred did have mental capacity at the time of making his 2018 Will.
Lack of Knowledge and Approval
The Court used the case of Schrader v Schrader [2013] when considering whether Fred lacked knowledge and approval when he made his Will.
This covered whether the testator knew what they were doing, as well as being aware of the effects of what they were doing. Knowledge and approval can be assumed if the testator had mental capacity and had correctly executed their Will.
In Gowling v Ward, it was found that Fred had knowledge of the contents of his Will and approved them. This was based on evidence that Fred had testamentary capacity and that the Will was prepared by an experienced solicitor who would have known to use Banks v Goodfellow when preparing Fred’s Will. The solicitor’s attendance note also confirmed that Fred had read the contents of his Will and approved it.
Undue Influence and Fraudulent Calumny
The claimants claimed that the defendants unduly influenced and poisoned the mind of the testator.
The Court stated that “it is not enough to prove the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis.” In this case, it had to be shown that the testators influence was done by coercion. Coercion is when the testator is forced to do something against their will. This means that they may feel the need to include instructions that they otherwise wouldn’t have included before.
Fraudulent calumny is when one person “poisons” the testators mind to believe negative things about another person who would have been a beneficiary of the testator’s Will. The person “poisoning” the testators mind must know that what they have alleged about the other person is false.
In this case, the Court found that the evidence did not “come close” to determining undue influence or fraudulent calumny.
Summary
The Court dismissed all four claims regarding the validity of Fred’s Will. The evidence presented in Court was not enough to satisfy the Court that Fred’s Will was invalid.
This highlights the importance of writing attendance notes when the testator is giving instructions and executing their Will as it provides factual evidence of the testator reading through the contents of the Will and executing it. Attendance notes can also show that the testator had mental capacity and that they were not unduly influenced as they can state whether the testator was alone in their meetings.
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