Challenging a Will – Who, When and What to Avoid – Case Law Update
When a person dies, their estate will be administered in accordance with the terms of their Will, or under the intestacy rules if the deceased has not left a Will. However, for the purposes of this Article, we shall assume that the deceased has left a Will.
In recent years there has been an increase in the number of Will disputes. Those who may contest a Will typically include a surviving spouse, children, a cohabitee, children who are treated as a child of the family and other dependants such as adult children who were financially dependent upon the deceased.
For a Will to be valid, it must satisfy certain requirements. A person may therefore challenge a Will in one of the following circumstances:
- If the Will was not executed properly – the Will must comply with the procedural requirements set out in s.9 of the Wills Act 1837. Including for instance, it must be signed in writing by the testator (person making the Will) in the presence of two independent witnesses at the same time and each witness must either attest or sign the Will or acknowledge the signature in the presence of the testator.
- If there is a lack of testamentary capacity – the testator must have been mentally capable of making the Will. They must know they are signing a Will, approve and understand its contents and understand the effect of their Will. It is also possible to challenge the validity of a Will if the deceased had a lack of knowledge or approval at the time of making it. Where capacity may be an issue at the time of making a Will, the golden rule is to ask a Doctor to sign the Will and we would always look to see if this has happened.
- If there has been undue influence – the deceased must have been coerced or unduly influenced into making the Will or a part of it. Examples will include if the deceased has been threatened, manipulated or deceived when they made the Will. This will also apply if the Will has been fraudulently created, for example, if the deceased’s signature has been forged.
There are different ways of challenging a Will depending on what exactly it is you wish to challenge. Perhaps sufficient provision was not provided for you within the Will or maybe you were given assurances during the deceased’s lifetime that you would inherit certain land or assets of the deceased, but their Will does not provide for this. If you have any reason to believe that a Will is invalid or that you have a potential ground for challenging a Will, it is important to seek legal advice as soon as possible as strict time limits apply within which a claim must be made (6 months from the date of the Grant of probate). A recent judgement handed down by the Court earlier this year means that it is now more important than ever to seek legal advice if you are thinking about challenging a Will.
Earlier this year, the Court in Elliott v Simmonds  EWHC 962 (Ch) gave us a cautionary reminder that any claim to challenge a Will must have reasonable grounds. By way of background, the deceased in this case had left a Will leaving the entirety of his £2m estate to his partner. The deceased’s daughter, from a previous relationship, wanted to challenge the Will on the basis that it made absolutely no provision for her and also on the basis that the deceased had previously left a Will, which had been superseded by the most recent one, in which he left a significant legacy to the daughter. The daughter entered a caveat to prevent the issue of a Grant of probate in the deceased’s estate and issued proceedings to test the validity of the deceased’s Will.
The daughter gave notice under rule 57.7(5)(a) of the Civil Procedure Rules (CPR) that she did not raise any positive case (as listed within our points 1-3 above), but instead insisted on the Will being proved in solemn form and invoked her right to cross-examine the witnesses who attested to the deceased’s Will. In this case, that involved the cross-examination of Mr Mumford, the solicitor who prepared the deceased’s Will (who was also the deceased’s brother-in-law and personal friend.) The cross-examination never raised any suspicion or doubt in respect of the validity of the Will and the daughter lost her case.
There is nothing particularly remarkable about that decision. Mr Mumford was an experienced solicitor who was able to give clear evidence about how he took instructions from the deceased and how he drafted and then executed the Will. It was upon this basis that Mr Murray, sitting as Deputy Judge, was satisfied that the Will was valid.
What is remarkable is the Deputy Judge’s next decision, to Order that the daughter pay the other parties legal costs. Under rule 57.7(5)(b) CPR, ‘If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.’
The daughter argued that she did have reasonable grounds to oppose the Will. She argued that there was no apparent reason why her father would make the superseding Will disinheriting her entirely. She also asserted that the solicitor, Mr Mumford, failed to prepare proper attendance notes in respect of her father’s instructions and did not attain proper medical evidence as to her father’s mental capacity.
The Deputy Judge dismissed the daughter’s arguments and stated that the deceased’s decision to disinherit his daughter was simply a matter for the deceased; it did not warrant an investigation into the Will being proved valid. The Deputy Judge also commented that although it was ‘regrettable’ that Mr Mumford failed to make attendance notes detailing the deceased’s instructions, there was little to be gained from cross-examining Mr Mumford.
Accordingly, the Deputy Judge invoked the exception within rule 57.7(5)(b) and held that there was no reasonable ground to oppose the Will or to incur the time and expense of cross-examining Mr Mumford and the daughter was Ordered to pay the Claimant’s costs from the 3rd June 2013. This is the date when the daughter and her legal advisors had sufficient information to form the view that their claim would fail.
Although the Deputy Judge did have the authority to Order the daughter to pay the other parties legal costs, it is a decision which has rarely, if ever, been made. It therefore serves as an important reminder that challenging a Will can be a complicated and expensive pursuit. Entering a caveat can be a reasonable first step whilst evidence is being gathered, however, if it becomes clear that there are no reasonable grounds for challenging a Will, you must strongly consider removing the caveat or you could ultimately land yourself with an expensive costs Order. We would therefore urge anyone who believes that they have a claim against an estate to get in touch and speak to one of our solicitors who will be able to guide you through the process and guard you against the potential pitfalls.