Challenging a Will

The first point to note is that capacity can fluctuate and is issue specific. Having testamentary capacity means the testator (the person making their Will) has sufficient capacity to understand they are making a Will that disposes of their whole estate upon death and that they appreciate the type of claims their estate might face. In other words, the testator has suffered no mental disorder or other impairment that affects this understanding. The test for capacity arises in the leading case of Banks v Goodfellow (1870) and through mental capacity legislation.

Sufficient capacity must exist at the point of Will execution. A person can lack capacity to some extent but still retain testamentary capacity. Medical evidence is often required to establish capacity and determine disputes where capacity is in issue.

Undue influence means coercion that acts to overpower a testator’s wishes so they make a Will they wouldn’t otherwise have made. It’s not ordinary persuasion or the normal degree of influence that characterises family relationships. It requires coercion as a leading case put it, that acts to ‘twist’ over the testator’s mind.

Undue influence is very difficult to prove. Suspicious circumstances like sudden Will changes favouring those in positions of power may raise questions, potentially shifting the burden of proof. Courts have recognised however that testators are entitled to make surprising (or even bad) choices without that necessarily meaning undue influence is a factor.

No, you can’t challenge Wills simply because you think it is unfair or leaves you a legacy that was not what you expected. People can leave their estates to whoever they choose even if choices seem poor to others.

If the Will of someone to whom you were connected fails to make reasonable financial provision for you however, you might be entitled to pursue an Inheritance (Provision for Family and Dependants) Act 1975, although there are strict statutory time limits, so you must act fast.

For any sort of challenge over capacity, medical evidence can be crucial; GP records, hospital notes, care home records and other expert reports can all help to establish the testator’s mental state around the time of Will execution. Witness evidence from family members or carers who observed the testator can also provide useful information.

In undue influence cases, witness evidence about relationships and a testator’s circumstances can be key, for example evidence of isolation, control, or coercion. Documentary evidence such as correspondence and information from earlier Wills demonstrating changes in testamentary intention can be probative. The burden of proof falls on those bringing a challenge save where sufficiently suspicious circumstances arise.

Claims based on a lack of capacity should be brought before an estate is distributed (and a person can enter a caveat to prevent an executor extracting a grant if need be). A court may refuse to hear a challenge if there has been excessive delay and/or where the estate has been distributed, and to disturb final distributions would cause problems.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 must be brought within 6 months of the date of a grant of probate (or letters of administration if the matter concerns an intestacy).

Challenging Wills after estate distribution could mean that executors who distributed in good faith are not held personally liable. Bringing claims promptly, as a last resort, is a cornerstone of litigation. Various statutory limitation periods (usually 6 or 12 years) exist in the field of contentious probate, and they depend on the type of claim you are bringing. The triggers for when the statutory time limit runs will vary from case to case, so you must act quickly to avoid being out of time.

If a Will is declared invalid, earlier valid Wills take effect if they exist. If there’s no earlier valid Will, meaning the deceased has died intestate, their estate is distributed under intestacy rules (i.e. the estate passes to spouses and/or blood relatives, or the Crown in statutory order).

Since the court is tasked with making a binary decision (the Will is valid or not), there is scope for the parties to try and agree a compromise between them, that all parties can live with, that is outside the scope of a judge.

Dispute resolution can be very expensive if the parties cannot find a solution early on. Even straightforward cases can attract significant costs. Proceeding to trial is very expensive indeed, hence why we focus on reaching settlements at this firm. Complex cases that require extensive medical evidence, or expert input are more costly still. We discuss costs with our clients from the outset.

Conditional fee agreements (CFAs) and deferred fee agreements (DFAs) are available for some claims where there is more certainty over costs recovery, or where the remedy ensures that you end up with a payment from which you can pay your legal fees.

Alternative dispute resolution, such as mediation, costs less than litigating ot trial and therefore reduces costs overall, however it is voluntary, meaning parties must all be taking a more reasonable, commercially minded approach. If you win at trial, the typical order is that the court orders the losing side to meet a proportion of the winner’s costs, but rarely all of them. If you lose, you must pay your own costs and whatever the court orders you to pay towards the winning side’s costs.