The law

A Will can be contested on the basis that it is invalid by relying on one or more of the following grounds:

1. The Will has not been correctly executed.

  • The person making the Will must have testamentary capacity i.e. be over 18 years of age and of sound mind;
  • The person making the Will must do so voluntarily, without undue influence and must know what the will says;
  • The Will must be in writing; and
  • The Will must be signed by the person making the Will in the presence of two witnesses and then be signed by the two witnesses, in the presence of the person making the will, after s/he has signed.

2. The testator lacked the necessary mental capacity. An individual will be considered to have sufficient mental capacity to make a Will if he understands the following:

  • The nature of the act of making a Will and its effect, i.e. that he is setting out to whom he wishes his property to pass on his death;
  • The extent of his property; and
  • The individuals for whom he is morally bound to provide and the consequences of not providing for such individuals.

If a Will appears rational then there is a presumption that the testator had mental capacity and the Will will be admitted to probate unless anyone can produce sufficient evidence to the contrary.

3. The testator lacked knowledge or approval of the contents of their Will. These claims arise when the circumstances surrounding the making of a Will appear to be suspicious. A testator must have knowledge and approval of the contents of a Will in order for it to be valid. In these cases, the onus of proof is put on the party relying on the disputed Will to show that it reflects the testator’s testamentary influence. Claims of this type are particularly common in respect of homemade wills.

4. The testator was subject to undue influence. If you suspect that the testator has done something that they might not have done had it not been for the influence of another (usually the main beneficiary under the Will) a claim under this ground may arise. Effectively, the testator’s own judgement has been abandoned having succumbed to the manipulative behaviour of another. In order to succeed, the claimant must be able to show that the testator was coerced into making the Will.

5. The Will is forged/fraudulent. The Will might have been prepared by a beneficiary who forged the signature of the testator either before or after their death. In these types of claim, a handwriting expert would normally be instructed. A Will could be fraudulent if the testator has left someone out that would otherwise have benefited on the basis of misrepresentations made by another person.  Alternatively, whoever drafted the Will on behalf of the deceased could have left a large portion of the estate to himself without the deceased knowing.

CASE STUDY

In 2017 there was widespread press reporting of a purported validity claim mounted by various charities in relation to the estate of Tracey Leaning. Under a will executed in 2007 Ms Leaning bequeathed her entire estate to four charities, the Dogs Trust, Friends of the Animals, World Animal Protection and Heart Research but in 2014 a new will was produced leaving her estate to her partner Richard Guest on the condition that he cared for her three dogs. The new will is said to have been handwritten and the signature page separate from the other pages giving rise to concern from the charities. Negative reporting in relation to this case was rife. The Daily Mail ran the headline  “Animal charities take grieving man to court” and Mr Guest appeared on ITV’s This Morning to talk about the case. In August 2017 Dogs Trust put out the following statement:

“All the charities are trying to do is follow Ms Leaning’s last wishes. This means making sure her last Will is valid and unfortunately for Mr Guest the legal process means that this is down to him to prove. We understand this is a sensitive situation but as charities we have a legal obligation to ensure that gifts left to us are followed up, so that last wishes can be fulfilled. We understand the dogs are very happy in Mr Guest’s care and this has been agreed by Ms Leaning’s family. We have no plans to change this arrangement – and our support is there if needed. Background to this case: Ms Leaning had a Will drafted by her solicitor in 2007 leaving her estate to four charities. A handwritten document has come to light from 2014, written eight months before her death. This was not reported to Ms Leaning’s solicitor. Contrary to statements in the press, the charities have not begun court proceedings in respect of the validity of the Will. Whenever anyone dies their last Will needs to be proved. This is a standard process and only the probate registry or the court can decide the outcome.”

It is not known what the final outcome of the dispute was but the mainstream reporting of the case before proceedings were even issued demonstrates how important it is for a charity to give careful thought to how they deal with even a potential legacy dispute. Mishandling matters at any early stage could give rise to an otherwise avoidable fallout that irreparably damages the public’s perception of a charity.

Top tips for charities

1. Early collaboration with other charities benefiting under a will is recommended (but always be mindful of a potential conflict). 2. Appropriate delegated authorities should be put in place by the Trustees to those responsible for legacy management to ensure that they are able to deal appropriately with any situation that might arise. 3. Information is key and requesting a copy of the deceased’s will and related information a likely first step but all written correspondence must be handled with care.