Will challenges are on the rise and the recent pandemic seems to have played a big part in that. It has prompted many of us to write one for ourselves, and sadly, more estates have been administered as a consequence of the unprecedented level of lost lives. That would be reason enough to see a spike in disputes but is that the full picture?
Throughout the long months of enforced social isolation we have sought out various ways to meet our need to put our affairs in order so we have the comfort should the worst happen to us. Everything will then run smoothly and our wishes will be carried out to the letter after we have shaken off this mortal coil. With Solicitors’ and will writers’ firms closed for long periods, we have turned to more homespun solutions to record our final wishes with unforeseen and unintended legal consequences.
The lockdowns have of course affected us all differently not least, than societies most vulnerable the Elderly and the ill who’s more bespoke needs are far harder to fulfil by using a DIY Will purchased from the internet.
Society’s vulnerable have missed the attentions of their family who perhaps live far away and so could not visit. Separation and disconnection of their support group left them open targets for individuals with flexible consciences and hidden agendas. These individuals are the beneficiaries that somehow ingratiate themselves to the vulnerable moving quickly from stranger to indispensable confidant and gatekeeper. Through their efforts, they inherit part or all of the deceased’s estates leaving family members and life-long friends out in the cold. In many cases the outcome in death has injured and hurt those the deceased loved the most in life.
People tend to choose homemade wills by necessity and ease as they come into existence without fuss or fanfare. No regulation or independent accountability is required to make one.
There are other ways confusion and suspicion grows surrounding the appearance of a homemade will. A loved one’s Will who has sadly passed can bring to the surface old familial quarrels and unresolved issues that have laid quietly ignored between family members for decades.
With this backdrop of suspicion, can we be sure that the will properly reflects the deceased’s true wishes?
What are typical arguments to challenge a Will?
A Will can be challenged in the UK in several ways. The most common arguments are:
- Lack of testamentary capacity
- Lack of knowledge and approval
- Undue influence
This article aims to focus on two arguments in particular:-
Lack of Knowledge and Approval
The issue of knowledge and approval of a Will’s contents only arises once testamentary capacity is established. A testator must be able to show that at the time of execution they knew and approved of its contents. The test of whether the testator ‘knew and approved’ of the contents of their Will is an objective one and the standard of proof is on the balance of probabilities. Whilst each case is decided upon its own facts and the suspicion must be sufficient to invalidate the Will, some key considerations can be made, such as:
- Does the Will contain any spelling or other errors with names or relatives?
- Is the language used out of character for the testator?
- Does the Will contain untrue statements?
- Is the Will significantly different to any previous Wills made? Are completely different beneficiaries are named without any rational explanation?
- Are any significant assets not mentioned?
- Is the Will particularly lengthy or complicated?
- How fragile or vulnerable is the testator and how heavily do they rely on the beneficiary named in the challenged Will?
- How was the understanding of the contents ensured?
It is also important to note that a testator does not need to understand legal terminology that gives effect to their wishes.
Royal Bank of Scotland v Etridge (No. 2)  AC 773 cites, “Undue influence is one of the grounds of relief developed by the courts of equity as a court of conscience. The objective is to ensure that the influence of one person over another is not abused.”
To prove undue influence, there needs to be a degree of coercion; it is more than mere persuasion. This more frequently is seen with elderly, vulnerable or infirm individuals who have been taken advantage of or exploited for another individual’s unfair gain, because they are of a weaker mind. Undue influence usually takes place behind closed doors so it can be very difficult to prove. Edwards v Edwards  W.T.L.R. 1387 provides the burden of proof is on the accuser and “what must be shown is that the facts are inconsistent with any other hypothesis.”
Making a Will can be the most important document we ever get to make in our lifetime because it governs what happens to the collection of a lifetime of hard work and good fortune. It is surprising therefore, that you can compromise a Will so easily.