Validity of third Will

[cornwall1990]

Any advice welcome. In a nutshell, elderly person with suspected incipient dementia (but no formal assessment yet due to Covid) may be under pressure from one of his adult children to sign a new Will (leaving everything to her).

The father's previous Will was made four years ago using a solicitor, after the same daughter was required by the family to repay substantial amounts which she had taken from his bank account over a 3 year period and used for her own purposes under the guise of caring for him. She does not accept accept that she anything wrong and only repaid the money to avoid being prosecuted. The elderly father cannot remember this distressing period - he can't remember anything after about 1950, in fact. He understands issues at the point when they are explained to him, but forgets to he conversation and the decisions he made, within hours. So you could explain why he should not sign anything the daughter asks him to, without seeking independent legal advice, and why, and he would agree that was a good idea, then within a few hours, he would forget he'd agreed to do that or even that he had had the conversation at all.

Two of his other children replaced that daughter as powers of attorney when the abuse came to light, but they are under the impression that legally he still has capacity and they are not sure what they can do to stop him signing his house over to her, or changing his will in her favour.

Any thoughts welcome.

[EnglandPi]

Grounds for contesting a will

1) The deceased did not have the required mental capacity

The person challenging the will must raise a real suspicion that the deceased lacked capacity. If they achieve this, the burden passes back to those seeking to prove the will, to establish that the deceased did have capacity.

Test for wills pre-1 April 2007

Generally, the test which is applied is in Banks v Goodfellow [1870] LR 5 QB 549, which states that the testator must:

• understand the nature of making a will and its effect
• understand the extent of his/her property
• be able to comprehend and appreciate the claims to which he/she ought to give effect
• have no disorder of the mind which ‘shall poison his affections, pervert his sense of right, or his will in disposing of his property’

Test for wills made after 1 April 2007

Capacity will be considered in relation to Sections 1 to 3 of the Mental Capacity Act 2005. It should be noted that under the act, the initial presumption is that the person has capacity. A person will lack capacity if, at the time in question, he is unable to make a decision for himself because of an impairment of, or a disturbance in, the functioning of the mind or brain.



In a claim of this nature, the medical records of the deceased, and the opinion of a suitably qualified medical expert, are crucial.

2) The deceased did not properly understand and approve the content of the will


If the court’s suspicion is aroused, it is for those seeking to propound the will to prove that the deceased fully understood how it operated and approved its contents.



Examples of suspicious circumstances could be where the deceased:

• was hard of hearing, or had a speech impediment
• was visually impaired
• had low levels of literacy
• was frail, unwell or otherwise vulnerable, and the will is particularly complex or unusual
• is purported to have directed that the will be signed by someone else

3) Undue influence


In the context of making a will, there is no presumption of undue influence. If a will is to be found to be invalid, it must be established that actual undue influence occurred. It is for those challenging the will to produce sufficient evidence to satisfy the court.

A claim of this nature should be pursued cautiously. Precedent demonstrates that for such a claim to succeed, the court will expect to be satisfied that there is no other reasonable explanation for the testator’s actions than that inappropriate influence was applied.



It must be proved that the testator acted against their own volition, and that they were coerced into making a will that that they did not wish to make.



As the nature of this allegation is tantamount to fraud, the evidential burden is high, and if a claim fails, there are likely to be serious cost consequences.



Bear in mind also that if coercion was exercised, the chief witness (ie the deceased) won’t be able to testify, and it will usually have taken place behind closed doors and in the absence of any other person.



So it can be extremely difficult to obtain sufficient evidence to convince a court that undue influence has been exercised.

4) Forgery and fraud


If it can be proved that a will has been forged, it will be invalid. At the outset, it is advisable to obtain the opinion of a handwriting expert as to whether the testator’s signature/handwriting is genuine. The expert will want to see a considerable number of original samples of the deceased’s writing and signatures. If the expert produces an conclusive report, it is unlikely that a claim would succeed.



More generally, it is possible, though rare, for a will to be challenged on the basis of fraud, ie an intentional deception made for personal gain, or to damage another individual. An example of such a claim that has succeeded is where a person impersonated the testator.



These claims will be few and far between, as there are usually more suitable grounds for challenge.

5) Rectification


A will may not reflect the wishes of the deceased due to a clerical error, or a failure to understand the testator’s intentions.



A clerical error is where a mistake is made in recording the testator’s wishes. If either scenario occurs, the court will rectify the will to give effect to the true intentions of the deceased. A claim of this nature must be issued within 6 months of a grant of probate being issued.

If it’s believed there has been a mistake in the drafting of a will, the initial steps should be to obtain and review the solicitor’s file, together with a statement of the solicitor’s understanding of the deceased’s wishes.



If it becomes apparent that the will writer understood the instructions, but incorrectly applied the law, then the will is still valid, but there may be a claim for professional negligence.

[cornwall1990]

Thank you EnglandPI.

What I suppose the family needs to know is whether there is any practical step they or their father can take to deter the daughter from exercising undue influence and pressure given that at the moment at least he still has capacity. For example, could the father write a letter and lodge it with his solicitor acknowledging his own vulnerability to fraud or coercion, and stating that any significant financial decisions he takes must, in order to be valid, have been made by him in the presence of a solicitor - otherwise they should be regarded as invalid? Would that hold water?

[EnglandPi]

The first step would be to get his doctor to certify he was of sound mind, then he could instruct a solicitor as above.