Solicitor, Amy Wilford from our Dispute Resolution team speaks to Choice Magazine about challenging a loved one’s last wishes.
Amy explains how it may be possible to challenge a loved ones will if you are unhappy with their last wishes, the grounds for challenge and dependants' challenge.
It has been widely reported in recent months that the two sons of the late Lynda Bellingham, the well-known British actress and Loose Women presenter, are in the process of challenging her will in which she left all her assets to her third husband, Michael Pattemore. It has been claimed that her sons have only received £750 each since her death, despite it apparently being their mother’s intention that they ‘were looked after’.
The number of will disputes has soared in recent years, not least because of the rise in house prices and complicated family structures involving second marriages and children by different parents. They can, by their nature, arise at an emotional time for all involved and are difficult not least because the deceased testator – the person making the will – is obviously no longer able to give evidence.
There are four main ways to challenge a will. However, there is no point embarking on a challenge if you will not benefit under the deceased’s earlier Will or under the intestacy rules (if there was no earlier Will), so consideration needs to be given to the consequences of a successful challenge before it is brought.
Grounds for challenge
The first ground on which a Will can be challenged is lack of proper formalities. The absence of any of these will entitle you to bring a challenge: the testator being at least age 18 at the time of making the Will; the Will being in writing and signed by the testator; the testator showing an intention to make a Will and his/her signature being intended to give effect to the Will; and the signature being made in the presence of two or more witnesses present at the same time.
The second ground is lack of testamentary capacity. This is arguably the most common ground under which challenges are brought. This is a three-stage test – the testator must:
- understand the nature of the act and its effects, ie, that he/she is making a Will
- understand the extent of the property of which he/she is disposing (the precise value of the property is not necessary)
- be able to comprehend and appreciate the claims to which he/she ought to give effect, and must not be affected by any ‘disorder of the mind’. There is a presumption of capacity unless there is evidence to the contrary, provided the Will is rational on its face.
A further ground is lack of knowledge and approval. The court must be satisfied that the testator knew and approved the contents of any Will executed.
Where a testator has duly executed his or her Will, knowledge and approval is presumed. However, where the person who prepared the Will is a beneficiary under it, there is no such presumption because the court regards the circumstances as suspicious. Where persons benefiting under a Will have been instrumental in its reparation, lack of knowledge and approval is often pleaded instead of fraud, as a high degree of proof is needed to plead fraud in a Will validity claim.
Undue influence is the fourth and final ground for challenging a Will. There are no presumptions of undue influence in relation to Wills and therefore whoever alleges it must prove it. It is not an easy ground on which to succeed and should not be embarked upon lightly. Coercion is a requirement – ie, that the testator is pressured into making a Will that he/she does not want to make. Convincing and direct evidence is required.
Should a challenge to the Will not be available on any of the above four grounds, certain categories of people, including spouses, children (including adult children) and any person being maintained by the deceased, can bring a claim against the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975. This is on the basis that the deceased’s Will or the intestacy rules (if the deceased died without making a Will) failed to make reasonable financial provision for the applicant. An application must be made within six months of the grant of representation to the estate.
Likewise, if a promise is made by a testator (such as “the farm will one day be yours”) and you rely on that promise to your detriment (for example, by giving up another career and working on the farm for next to nothing for many years), you may have a claim for ‘proprietary estoppel’ when the farm is instead left to your siblings, for instance, in the testator’s Will.
It is under one of these grounds, although which one is not known, that Lynda Bellingham’s sons are challenging her Will.
As her children, they have the right to challenge a lack of reasonable financial provision; however any broken promise that her sons would be ‘looked after’ would not, on its own, be sufficient because of the absence of reliance and detriment.
This article was published first by Choice Magazine on 1 November 2016.