Contentious Probate

There are number of different grounds for contesting the validity of a Will:

• Invalid execution of the Will
• Testator’s mental capacity
• Lack of knowledge and approval
• Undue influence
• Forgery and Fraud

We will explore the elements of each possible ground for a probate claim below.

What is a valid Will?

For a Will to be valid, it must comply with the requirements set out in the Wills Act 1837(“WA 1837). In summary, a Will must be:

• Made by a person over the age of 18 at the time he/she created the Will.
• In writing.
• Signed by the testator.
• Witnessed in the presence of two or more witnesses at the same time.
• Each witness signs the Will in the presence of the testator.

There are some exceptions to these rules:

• A testator does not have to be over 18 if he is serving in the armed forces.
• The Will can be signed on behalf of the testator if done so in the testator’s presence and at his/her clear direction.
• A Will does not have to be dated to be legally valid. However, it is always wise to contain the correct date on the Will and to ensure the las Will of the deceased to reduce any uncertainty in the future.

Invalid Execution of the Will

The first possible ground to challenge the validity of a will is ‘want of due execution of the Will’. If any of the legal requirements set out above are not satisfied or in doubt; for example, the testator did not sign the Will in the presence of witnesses.

A court will generally presume that the Will has been executed in compliance with the legal requirements and the burden of proof rests strongly with those attempting to challenge the Will.

Testator’s Mental Capacity

If you believe that the testator was not of sound mind when making their Will, you may be able to contest the validity of the Will on the basis of Mental Capacity.

When someone writes a Will, they must have sufficient mental capacity to do so. As many people choose to make or change their Will later in their lives, their capacity may be affected by mental health conditions such as dementia.

Regardless of their age, people may also lose their mental capacity due to a long-term mental illness or brain injury.

Claims on this ground will be examined according to the test given in the case of Banks v Goodfellow (1870), which is as follows:

A person writing a Will should

1. Understand that they are making a Will and the effect of the document.
2. Reasonably understand what assets they are dealing with in their estate.
3. Understand who they would generally be expected to leave their estate to.
4. Clearly show that they are not suffering from a disease or illness.

For a successful claim based on the testator’s mental capacity, like all claims contesting the validity of a Will, strong evidence in support is essential. This might include medical records, or statements from family and friends of the testator who would be able to explain his/her state of mind when the Will was signed.

Lack of knowledge and approval

If a Will has been properly executed and there is enough evidence that the testator had capacity, a court will presume that the testator had a full knowledge of the Will’s contents and approved them.

This presumption will not automatically apply where the testator cannot read, speak or write. In such circumstances, evidence that the testator has understood the content of their Will must be provided.

Otherwise, the presumption can be overturned by a court if circumstances surrounding the preparation and execution of the will are suspicious. For example:

• The Will was prepared by a beneficiary
• The Will was homemade and the testator didn’t seek professional advice

Undue Influence

Another ground to challenge the validity of a Will is Undue Influence. A claim based on Undue Influence will need to establish that the testator of a Will was coerced by another into changing their Will to benefit the coercive party or another person.

In the case of Re Ho Chau Ying Chin [2019] EWHC 523 (Ch) the Will of a mother, was contested by three of five daughters, who had been disinherited in favour of their only brother.

Ho Chin had written her Will in 2009, stating she wished to split her estate equally between all her children. She had also written a letter saying that she “had always been very fair to all of her children”. Following a stroke, she became dependent on her husband, who held the traditional view that his son alone, should receive an inheritance. In 2011, Ho Chin executed a new Will leaving the majority of her estate to her son.

In 2015, after Ho Chin’s death, three of her daughters challenged the validity of their mother’s Will. The court found that Ho chin had been unduly pressured to change her Will having been worn down over the years by her husband.

The serious nature of the allegations involved in contesting a Will on the grounds of Undue Influence mean that strong, compelling evidence to support the claim is required. This is notoriously difficult because the primary witness – the deceased – is unable to assist the court and coercion will often have only taken plane in private.

However, as in the case of Schrader v Schrader (2013), the Court will rely on circumstantial evidence and the quality of the evidence available, when making a decision.

In the case of Schrader v Schrader (2013), Mrs Schrader had two sons. She left the main asset of her estate to only one of her sons (“A”) in her last Will. In a preceding Will, she had divided her estate between her two sons equally.

The court concluded that A had unduly influenced Mrs Schrader to change her Will, despite the absence of any evidence of coercion. The court considered A’s forceful personality and his involvement in the preparation of the Will as sufficient evidence to support its decision

It is worth noting that Undue Influence is distinct from ‘mere persuasion’. For example, someone consistently talking about imminent insolvency and the need to receive funds from an estate to pay off their debts would not amount to Undue Influence.

Fraud and Forgery

A claim that a will is invalid can be based on Fraud or Forgery. Fraud involves dishonesty and deception deliberately used for personal benefit. For example,

• Impersonation of the testator by a fraudster to execute the will.
• Misleading the testator to sign a Will when they believe they are signing a different document.
• A beneficiary making false representations to the testator about the character of another beneficiary, to deceive the testator.

Forgery occurs when a testator’s will, or the testator’s signature, has been written by an imposer posing as the testator.
In such circumstances, the instruction of a specialist handwriting expert will be required to obtain a report as to whether, in their professional opinion, the will and/or the signature is the testator’s.

If the Will is held to be invalid

If the validity of a Will is successfully contested and the court confirms the Will is invalid, the estate will instead be dealt with under any earlier will of the testator. If there is no previous Will, the estate will be distributed according to the Intestacy Rules.