I very often meet families who are convinced that the will their parent left, though it complies with all the formal requirements (i.e. has signatures, dates etc.), is not a true reflection of the last will of their mother or father. This is particularly common among families that are close, where open family conversations about who will get what after mother/father dies are considered to be in a bad tone, though where very close family relationships and various dependencies between parents and children lead to various promises being made and various expectations being built.
“My parents treated us all equally. They already helped my sister bring up her children, so would not, on top of that all, want to leave her their entire house. They always wanted for us all to have equal shares”, I hear from the eldest son of the family. “But I looked after our parents for years after my children grew up”, says the sister, “I gave up my life for them so they decided to reward me for that. My brothers got all the education they wanted at our parent’s expense. Parents also helped them when they bought their houses, so this is all fair.” Such exchanges of arguments are endless and often painful for all concerned. Arguments that took place several years ago over such trivial matters as unequal contribution towards mum’s birthday flowers are brought back to life. Assaults are thrown, tempers are lost and vivid accounts of mummy “turning in her grave when she hears what you say” are given.
Sadly, though mummy is surely turning in her grave when she hears such fights, she will not leave that grave to confirm to anyone if the will she left is the true reflection of what she wanted. Will is always presumed valid, unless it is successfully proven it is not. How can one therefore show that?
Only with hard core evidence, not merely presumptions and accusations. Evidence of what? In practice, the only real grounds on the basis of which one can successfully abolish an otherwise valid will are proving undue influence or lack of testamentary capacity.
Demonstrating undue influence means showing that there was coercion, manipulation, deception or intimidation. In other words what you need to show is that e.g. a greedy sister put pressure on mum at the time when mum was making her will, to influence the content of such a will to her advantage. Undue influence is a serious allegation. The sister may have appealed to the mother’s affection by dropping hints about how she cared for mummy in the past years or how poor her grandchildren will be if mummy does not leave the house to her daughter. All such appeals are undoubtedly designed to emotionally influence mum. However appalling they are, they are perfectly legal. What is not acceptable is the sister applying psychological or actual, physical pressure on mum thus forcing her to do something she would otherwise not have done, i.e. the mother doing what she does not want to do, only because she thinks she must.
Contesting a will on the grounds of lack of testamentary capacity requires showing that mum, at the time of making her will was not mentally capable; that she suffered from a condition that distorted her sense of “doing the right thing”. That could be a consequence of some long term degenerative illness or might even be due to drug or alcohol consumption at the time of making the will. Medical or psychiatric assessment by an expert able to comment on mum’s state of mind at the time she made her will be needed. That is why medical records and evidence from witnesses who came into contact with the mother at the crucial time will be of outmost importance.
Most certainly, easily thrown accusations against the greedy sister or even appeal to what is fair will not help. Evidence is a key. If distribution made in a will is not making a sufficient provision for one or more of the children, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 may be considered. If any promises were made, a claim under the principles of promissory estoppel may be explored. If however a claim contesting validity of a will is intended, hard core evidence of either coercion or mental incapacity will be needed.