The loss of a loved one is an emotionally distressing time but with the value of estates increasing and becoming ever more complex it is no surprise there has been a significant increase in the number of inheritance disputes with several high-profile challenges being reported by the press recently. 

Will Disputes

English law is relatively unusual in recognising the concept of testamentary freedom; other jurisdictions have fixed heirship rules and govern how an individual’s estate will pass. However, this does not mean Wills under English law are exempt from challenge.

There are many examples of challenges to Wills that can be cited. These range from the technical (the Will was not properly executed) to challenges that the Will does not make reasonable financial provision for those to whom the deceased owed an obligation.

Here are just a few common challenges to Wills:

1. The Will has not been properly executed;
2. The deceased did not have the mental capacity to execute the Will;
3. Lack of knowledge and approval;
4. Undue influence;
5. Fraud

The Will has not been properly executed

A challenge to a Will on this ground occurs when the legal formalities for making a Will are not observed.

The standard formalities for executing a Will are set out in section 9 of the Wills Act 1837 and these include:

• The Will must be in writing and must have been signed by the deceased (or another could have signed it but it must have been in the presence of the deceased and at their clear direction)
• The deceased must have signed it with the intention of creating a valid Will;
• The signature must have been made or acknowledged in the presence of at least two witnesses present at the same time; and
• Each witness must have signed the Will in the presence of the deceased.

If any of the above are not met, the Will may be invalid.

Mental Capacity

A person must be of sound mind when making a Will. If a person does not have the mental capacity at the time of execution the Will may be the subject of challenge.

Lack of knowledge and approval

The deceased must have been aware of the content of their Will. If it can be established the deceased did not know the content or approve the content of their Will it is open to challenge.

Where a Will was executed by the deceased correctly and provided the deceased had the necessary mental capacity then knowledge and approval will be presumed.

However, issues of knowledge and approval can arise for certain categories of persons and in these circumstances the Court will require sufficient evidence to prove they understood and approved the content of their Will. This includes, for example, those who are blind, deaf or illiterate.

Similarly, where a Will has been executed in circumstances which give rise to suspicion the Court will want evidence to dispel any doubt. Each case will turn on its fact but examples of situations which may excite the suspicions of the Court are:

• where the terms of the deceased’s Will do not correspond with what they said to others about their estate after its execution;
• where the deceased had comprehension difficulties and/or English is not their first language;
• the execution of the Will was not supervised by a solicitor

Undue Influence

A challenge to a Will on the grounds of undue influence will occur when the deceased was coerced into making a Will they do not wish to make. The coercion can take the form of threats and manipulation as well as physical harm.

In cases of a Will there is no presumption of undue influence and to prove undue influence there must be clear evidence. The bar for establishing undue influence is, therefore, a high one and whilst not impossible successful challenges are rare.

Fraud

If the true intentions of the deceased are not contained within the Will it may be possible to challenge the Will on the ground of fraud.

Examples of fraud include circumstances where somebody else impersonated the deceased in order to execute a Will or where the deceased was deceived into making a Will on certain terms based on a false premise.

Unlike undue influence fraud does not involve a degree of coercion but, like undue influence, fraud can be difficult to prove not least of all because the deceased will not be able to give evidence.

Contesting a Will

To try to avoid any disputes it is advisable to make sure your Will is prepared by an experienced solicitor and that it is kept up-to-date.

However, disputes over Wills do and will arise and if you feel that you have grounds to challenge a Will then it is important to act quickly before the estate is distributed and because certain challenges are subject to strict time limits.

Colman Coyle has considerable experience in advising in relation to the preparation of Wills and experience dealing with inheritance disputes.

If you would like to discuss any of the issues raised here, please contact Adam Palmer on +44 (0)207 354 3000 or adam.palmer@colmancoyle.com