The Top 5 Reasons Why A Will Is Contested After Death
The Top 5 Reasons Why Wills Are Contested After Death
Sadly, after someone has died, the distributing of that person’s estate can sometimes result in disagreements between friends and family. Even during this sensitive time, some people may contest the contents of a will, maybe because they were left out of it completely, or feel they deserve more, and this may then end up in a legal dispute. The best way to avoid contested Wills is to understand what can go wrong after death, and get the best advice when writing your own Will.
Talbots has extensive experience in Wills and contested probate, so let’s run through five of the most common situations where a Will could be challenged:
- Lack of capacity
A will may be contested where the Testator did not have the required mental capacity at the time the will was created.
In the common law case of Banks v Goodfellow  LR 5 QB Chief Justice Cockburn laid out the test to be applied when determining whether a Testator had the required capacity to execute a will. A testator will be deemed to have testamentary capacity if:
- They understand the nature of the Will and its effects;
- They have some understanding of the extent of the property of which they are disposing;
- Can comprehend and appreciate the claims which could arise from people under their estate; and
- No disorder or delusion of the mind has influenced their will in disposing of the property
The recent case of Clitheroe v Bond  EWHC 1102 (Ch) upheld the test laid out in Banks v Goodfellow. In this case, Justice Falk held that the Testatrix, Mrs Clitheroe, lacked the required testamentary capacity because she was suffering from an extreme reaction to grief, following the death of her eldest child in 2009. This amounted to a lack of testamentary capacity with which to execute a will.
In the case of Parsonage v Parsonage  EWHC 2362 (Ch), our team successfully obtained an order on behalf Ian Parsonage, son and executor of his late mother Beryl’s estate; following a lengthy battle over the validity of her last will made in 2011. His Honour Judge Barker QC held that the 2011 Will was valid. Beryl had the requisite mental capacity to execute the Will as, whilst she was suffering from dementia, this was not advanced and she was capable of making sound decisions.
- Duress or undue influence
Alternatively, a Will may be contested on the basis of Duress and Undue Influence. There is no presumption of duress or undue influence and the burden is on the person who is challenging a Will to establish and provide evidence to the court.
The court must be satisfied that the Testator acted against their own volition and were pressured or coerced into making or changing their Will. There must be no other reasonable explanation for the Testator’s actions.
The case of Coles v Reynolds & Anor  EWHC 2151 (Ch) demonstrates the high evidential burden on Claimants seeking to contest a will on the basis of duress or undue influence. The deceased, Mrs Hillard, had two daughters; Mrs Coles (claimant) and Mrs Reynolds (defendant). In 2012, Mrs Hillard made a new will which named Mrs Reynolds as the sole beneficiary and executor her entire estate; making no provision for Mrs Coles. Mrs Coles bought a claim against the estate on the basis that the 2012 will was invalid, claiming that Mrs Reynolds had subject the deceased to undue influence. The judge held that the allegation of undue influence was not made out as the deceased was independently advised by her solicitors. They were satisfied that she wished to make the 2012 will in the form that it was executed. Further, there had been a breakdown of the testamentary relationship between Mrs Coles and the deceased before her death and the deceased’s decision to make a new will was understandable. The fact that Mrs Coles was unhappy with this did not mean that undue influence existed.
Another aspect of duress or undue influence is the doctrine of Fraudulent Calumny. Where a person believes that the Testator’s mind has been poisoned against a particular person by casting dishonest aspersions on their character; which leads the Testator into freely excluding that person from their will, they may challenge that Will.
Such claims for duress or undue influence are, by their nature, highly evidential-based and the person challenging the Will must be able to satisfy the court that the Testator was coerced into changing the Will.
- Proprietary estoppel
If an undocumented promise or agreement has been made to you by a person that you would inherit or receive a benefit after their death but this has not been reflected in their Will, it is possible to contest the Will under the doctrine of Proprietary Estoppel.
In order to bring a claim for proprietary estoppel, a promise must have been made to the claimant; for example, that they would inherit property or land. The claimant must have relied and acted upon this promise, causing them to suffer a detriment.
In Guest v Guest  EWCA Civ 387, a farm owner, David Guest, made a promise to his son, Andrew, that he would inherit a sufficient interest in the farm. The judge held that Andrew had believed this promise and had worked on the farm for over 30 years for modest pay. The promise had been relied upon and consequently Andrew had suffered a detriment having worked for a below-market wage; having not taken any employment opportunities elsewhere.
Such claims for proprietary estoppel are highly fact-specific and will largely depend on the evidence that is provided.
- Lack of due execution
There is a presumption that a Will is duly executed if it conforms with the requirements as set out in Section 9 (1) Wills Act 1837 which states:
‘No will shall be valid unless it is in writing and signed by the testator in the presence of two or more witnesses’.
The burden is on the party relying on a will to establish that it has been validly executed and witnessed in accordance with the requirements under Section 9. If a person believes that a will has not been duly executed, they may bring a claim under Section 9.
In Face v Cunningham  EWHC 3119 (Ch) the deceased’s daughter, Mrs Face, sought to rely on a photocopy of the deceased’s apparent Will dated 2017. The deceased’s two other children alleged that Mrs Face had forged the 2017 Will along with her partner and two attesting witnesses. The judge dismissed Mrs Face’s claim as it was based on a fabricated document.
- Deceased did not properly understand and approve the content of the will
In order for a Will to be valid, the Testator must know, understand and approve the contents of their will. The burden of proving the validity of the Will is on the party seeking to rely on the Will.
In the case of Skillett v Skillett  EWHC 233 (Ch), the deceased, Charles Skillett made a Will in 2011 leaving a piece of land to his son Stephen. The deceased’s three other children bought a claim against the estate arguing that the value of the land had increased significantly following the deceased’s death in 2017. They sought to claim that the deceased did not have the appropriate level of knowledge and approval of the will, following his diagnosis of Alzheimer’s Disease in 2013. The judge held that, at the time the Will was executed in 2011, the deceased knew and approved the provisions in his Will. The increase in value of the land at the time of death did not undermine the rationality of the provisions which the deceased had instructed to be incorporated at the time the will was made and executed.
In Parsonage v Parsonage, it was further ordered that the Beryl’s 2010 Will was invalid on the basis that she materially misunderstood the nature and extent of her estate.
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