Will disputes have without a doubt become more common over the last few years. Two key reasons for this are the increase in more complex family arrangements, and the increase in property values that makes the prize of a successful challenge increasingly valuable.
Broadly speaking, there are two bases upon which the disposition of an estate under a will can be challenged. Those are that the will itself is invalid, and/or that the will does not make ‘reasonable financial provision’.
Before a disappointed beneficiary takes steps to challenge the validity a will, they would be well advised to consider the effect on the entitlement to the estate, should the challenge succeed. If the challenge is successful and there was an earlier will, the estate will be distributed in accordance with that earlier will. If there is no earlier will, the estate will be distributed in accordance with the rules of intestacy. It could be, therefore, that a potential claimant would receive no greater share of the estate even if they were to successfully challenge the validity of a will.
Validity of the will
Wills are most commonly challenged on the following grounds:
Lack of due execution
The formalities of a valid will are set out in s.9 of the Wills Act 1837. This requires that:
- it must be in writing
- it must be signed by the testator, or signed on their behalf
- the testator must sign or acknowledge their signature in the presence of two witnesses
- the witnesses must sign or acknowledge their signatures in the presence of the testator (but not necessarily in the presence of each other)
With the growth of DIY wills, there has been an increase in the number of wills that do not comply with s.9 of the Wills Act 1837 and, consequentially, an increase in disappointed beneficiaries.
A will is automatically revoked by marriage or civil partnership. It can also be revoked under s.20 of the Will Act 1837 by:
- another will (or codicil)
- something in writing declaring an intension to revoke, executed in the same way as a will
- burning, tearing or otherwise destroying the will with the intention of revoking it
The testator must have had mental capacity at the time of making the will. The uncertainty as to whether the Mental Capacity Act 2005 replaced the test, as set out in the historic case of Banks v Goodfellow , has been resolved in the recent case of Walker v Badmin . The High Court has ruled that the common law Banks v Goodfellow test is ‘the correct and only test’ for testamentary capacity. A testator therefore must:
- understand the nature of the act and its effects
- understand the nature and extent of the property of which they are disposing
- be able to appreciate the claims to which they ought to give effect
- Must not be affected by any ‘disorder of the mind’ that shall ‘poison his affections, pervert his sense of right, of prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made’.
Lack of knowledge and approval
The testator must know and approve of the contents of the will. There is a presumption of knowledge and approval where a testator had capacity, and the will was duly executed. However, if suspicious circumstances surround the preparation or execution of the will, for example, where the main beneficiary assisted the deceased in preparing his/her will, that presumption can be rebutted, as it will ‘excite the suspicion of the court’. The greater the suspicion, the greater the burden on the person relying on the will.
There will be undue influence if a testator is coerced into making a will that they do not want to make. What amounts to coercion will depend on the strength of the will, or the vulnerability of the testator. Unlike the case of lifetime transactions, there is no presumption of undue influence inferred from the circumstances; actual undue influence has to be proved. The burden of proving that there was undue influence is on the person making the allegation.
What if the will does not give reasonable financial provision?
Even if the will is valid, certain relatives and dependants can challenge the division of the estate under the will (or the rules of intestacy), by claiming under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) that it does not make ‘reasonable financial provision’ for them.
The categories of those who can make a claim are:
- a spouse or civil partner
- a former spouse or civil partner who has not remarried or registered a new civil partnership (provided a court order was not made at the time of the separation that specifically prohibits them from bringing such a claim)
- any person cohabitating with the deceased as ‘husband and wife’ for at least two years immediately prior to the deceased''s death
- a child of the deceased
- a person treated by the deceased as a ‘child of the family’
- any other person who immediately prior to the deceased''s death was being maintained by the deceased
There are statutory guidelines the court must take into account when considering a claim under s.3 of the 1975 Act. These are:
- the financial needs and resources of the beneficiaries and applicant(s)
- any obligations and responsibilities the deceased had towards any applicant or beneficiary
- the size and nature of the estate
- any disability (physical or mental) of any applicant or beneficiary and any other matter, including the conduct of the parties
In the case of an application by a spouse or civil partner, the court will also have regard to the age of the applicant and the duration of the marriage or civil partnership, and the contribution made by the applicant to the welfare of the family of the deceased.
While spouse and civil partners do not have to show that they are in financial need, or were financially dependent on the deceased, to successfully bring a claim, other categories of applicants will need to do so. The maintenance standard is applied and the standard of provision is ‘such provision as would be reasonable in all the circumstances to maintain the applicant’.