If there’s a will, there’s a way to challenge that will


The courts have never fallen short of providing thought-provoking stories of people challenging wills made by their nearest and dearest. Below are a selection of three recent cases from the legal press that have sparked interest.

Ball v Ball [2017], involved a challenge against a late mother’s (Mrs Ball) will by three of her children (out of a total eleven siblings!). Mrs Ball disapproved of the three children making allegations of sexual assault against their father (Mr Ball) and executed her will the following year excluding those three children from her will. The children argued that she lacked mental ability (capacity) to make a will, or alternatively that she was forced by their father (undue influence) into making the will. They argued that Mr Ball told Mrs Ball that he was innocent of the accusations and this is why Mrs Ball decided to disinherit the children. The judge considered the arguments of capacity and undue influence and rejected these as he considered that the mother was entitled to make whatever provision she wanted in her will and the fact that others did not like her choice did not mean that it was made under influence. He also said that since Mr Ball had admitted to some of the counts of sexual assault, this meant that Mrs Ball had not been misled. The children’s case was unsuccessful and the estate was distributed amongst the other eight siblings. This case shows that even strong arguments of undue influence will not prevent a will being upheld and the court’s reluctance to override the will writer’s intentions. Whilst some may see this as a harsh ruling particularly because of the allegations raised by the children, it needs to be remembered that the court’s primary focus is to uphold the wishes of the testator, which, they have done here.  

In Legg v Burton [2017] June Clark made thirteen wills between the period 2004  to 2016.  All of which were later ruled by the court to be invalid. This was because of a will that she made in 2000 which was considered to be a mutual will (when couples agree to leave all or most of their estate to the surviving spouse who then agrees to pass that on as gifts to the children). Mrs Clark’s daughters, Ann and Lynn challenged the final will she made in 2014, which left £10,000 to Ann and £30,000 to Lynn, the remainder was for a number of other beneficiaries. Ann and Lynn argued the 2000 will was one of a pair of mutual wills and therefore the mutual promise could not be revoked by later wills. The appointed executor was Aaron Burton, Lynn’s son, who sought to challenge the mutual will by saying that his mother had never intended to make a mutual will. Had his challenge succeeded then the estate would have been distributed between all the beneficiaries and not just Ann and Lynn. The court decided that the mutual wills were valid and ordered that the two daughters share the estate equally, leaving the other beneficiaries nothing. Mutual will cases (not to be confused with mirror wills) are quite unusual cases.  In order for them to be regarded as mutual wills they must; satisfy the requirements for a binding contract and not be a loose understanding between the couple, must be proven by clear evidence and must include an agreement not to revoke the wills.

Mutual wills will take priority over any later wills produced and therefore the evidence in support of such must be very strong. This case is clear evidence of why people need clear advice on what type of will they are creating and why previous wills should be revisited each time a new will is prepared.

The strict scrutiny demanded in contested probate cases is highlighted in the case of King v Dubrey [2014]. This case concerned a Death Bed Gift; a legal concept which allows a gift to take effect without the usual formalities for making a will but only in very limited circumstances. The requirements for a Death bed gift are that a gift must be made in contemplation of death, the gift becomes conditional on death and the gift must be delivered to the intended recipient in a way so that they have ownership of it. In this case, the court decided that a valid Death bed gift was made despite the fact that the donor had not visited the doctor for some time and she did not express a date by which she thought she would die. As a result, some saw this case as a relaxation of the requirements of the donor to contemplate their death. However, compare this with the case of Re Ellen Elizabeth Exler deceased [2017] where the court found that Ellen did not make a valid Death bed gift to her brother, Stephen as the relevant circumstances were not met i.e. she was not in hospital at the time, her death was not thought to be imminent and she was not contemplating her death at the time the gift was made. In fact, she eventually recovered from her illness.  

All in all, in matters of contested estates the courts reach decisions on a case-by-case basis and rightly so. All claims brought against estates therefore need to be based on strong evidence as the cases above show that courts will be strict in enforcing the wills, and the wishes of the testator are always of paramount importance.

Farah Ali

Trainee Solicitor
Corporate & Commercial Law
Residential Property
Dispute Resolution

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