Challenges regarding the validity of Wills, including lack of capacity and undue influence and fraudulent and forged wills
Legacy gifts to charities are a vital source of income for charities. Unfortunately, these charitable legacies can all too often form the basis for disputes.
Disputes can arise in 2 ways:
- The charity is named as a beneficiary in the Will and you are facing a claim by a disgruntled family member or beneficiary seeking to challenge the Will, or
- The charity is seeking to challenge a Will which reduces the legacy to your charity or removes the charity from the Will altogether.
We can assist with settling the dispute on terms that maximise the legacy your charity is due to receive. If a settlement cannot be reached, we can also assist you with defending the claim in court if necessary with minimal reputational damage.
In the UK a Will can only be challenged on the following grounds:
The deceased lacked mental capacity to make the Will
This occurs where the deceased did not have the required level of understanding to make the Will perhaps due to dementia, an injury or the level of medication being taken.
It is most often seen in cases where the deceased was elderly or the Will was made during the last few weeks of life, perhaps while the deceased was in hospital.
If it is suspected that a Will has been made at a time the deceased lacked mental capacity, we are able to obtain the deceased’s medical records and instruct an expert to prepare a report on the deceased’s capacity.
We can also obtain copies of the deceased’s social services and care home records as these can often shed light on the deceased’s state of mind around the time the Will was made.
The evidence of the witnesses to the Will is also important and we can speak to the witnesses and ask appropriate questions.
If the Will was made by a solicitor, we can ask questions of the solicitor regarding the circumstances of how the Will instructions were given and how the deceased’s capacity was checked.
We can obtain copies of all previous Wills.
Sometimes a medical report on capacity will have been prepared when the deceased made the Will, often this will be made by the deceased’s GP. A report confirming capacity is useful in terms of proving that the deceased had capacity when making their Will and that their Will is valid.
The deceased was unduly influenced to make the Will
This occurs where the deceased has been put under pressure to make their Will. It is more likely to occur where the deceased is elderly or in a vulnerable position, perhaps suffering from a mental illness and reliant on the person exerting the pressure.
Undue influence cases can be difficult to prove and it is likely that the deceased’s family and friends as well the witnesses to the Will are to be contacted to build up a picture of the case.
We are able to obtain copies of the deceased’s medical, social services, care home records and all previous Wills.
If the Will is a homemade Will, this is more likely to raise suspicions.
It is still possible to claim undue influence even when the Will was made by a solicitor or will writer.
We can ask the solicitor questions about how the Will was made including who contacted them to arrange the Will, who gave the Will instructions and who was present.
If Will instructions were given with beneficiaries or relatives of the beneficiaries of the Will in the room, this will cause concern.
The deceased was unduly influenced and cut out a beneficiary
The basic idea is that if A poisons the deceased’s mind against B, who would otherwise be a natural beneficiary of the deceased’s estate, by casting dishonest aspersions on his character, then the Will is liable to be set aside.
We will require sufficient evidence (e.g. from the deceased’s friends and relatives) to establish that A made a false representation to the deceased about B’s character for the purpose of inducing the deceased to alter his Will and A made such a representation knowing it to be untrue or being reckless as to its truth, and the Will was made only because of the “fraudulent calumny”.
A high standard of proof is needed in such cases and claims of this nature should not be brought lightly.
Fraud or forgery is believed to be involved
In the UK a Will can be challenged on grounds that there was fraud or forgery involved in the making of the Will.
A forged Will is generally one that was made without the deceased’s knowledge.
These cases are difficult to prove and we will need to obtain evidence if we are defending the Will for your charity.
We are able to contact the witnesses to the Will to check if the deceased signed the Will in front of them and the circumstances in which the Will was signed.
We can instruct a handwriting expert to prepare a report to confirm if the deceased signed the Will.
The handwriting report uses scientific processes to confirm if the deceased signed the Will; it is not just a matter of looking at true signatures of the deceased to see if they match the signature in the Will, including the approximate month and year the Will was signed. This can be helpful in proving that it is not a forgery.
The deceased did not have sufficient knowledge and approval of the contents of the Will
This occurs where the deceased has not fully understood or appreciated the terms of the Will and will often apply where there are suspicious circumstances in the preparation of the Will.
It includes cases where the deceased is unable to read and the Will was not read to them before it was signed, or the deceased did not understand percentages and these are included in the Will.
Sometimes the wording of a Will can be complicated and there might be a suspicion that the deceased would not have fully appreciated the effect of the Will.
We can ask the solicitor who drafted the Will to answer questions including how the provisions of the Will were explained.
We can also contact the witnesses to the Will to ask if they have any information which may help.
The Will was not signed and witnessed correctly
There is a very strict process concerning how a Will must be signed and witnessed. The Will must be signed by the deceased in the presence of 2 witnesses. If this process is not followed the Will is invalid.
If any witnesses to the Will are beneficiaries or relatives of a beneficiary named in the Will they will forfeit their gift in the Will.
If the Will looks valid on the face of it but a beneficiary alleges that, for example, the Will was not correctly signed or witnessed or that the deceased did not sign the Will in front of the witnesses, we can help by examining the Will and contacting the witnesses.
If a solicitor or will writer was involved in the preparation of the Will we can write to them asking questions on how the Will was signed and what instructions they gave the deceased on signing the Will.
The deceased revoked the Will
A person who makes a Will can revoke it at any time. A Will cannot be made irrevocable. Certain events, such as divorce or the making of a later Will, can partially or completely revoke the Will by making certain terms of the Will ineffective.
If a person gets married or enters into a civil partnership, his Will is automatically revoked unless it was made in anticipation of the marriage or civil partnership.
Steps in a Will dispute claim
The first step will be the gathering of some initial evidence as mentioned above.
If your charity is disputing a Will, we will tie the case together setting out the legal basis of your claim in a detailed letter, referred to as a letter of claim. The letter is sent to the Executors of the estate for their reply.
If we are acting on your behalf in defending a Will challenge, we will draft a reply to the letter of claim setting out any evidence and legal arguments we have to counter the challenge.
There is usually a pause here to allow the parties to try and settle the dispute. Mediation may take place at this stage.
Mediation is an effective way of settling Will disputes as it allows the parties to discuss their personal issues and to try and agree a way to divide the estate fairly.
If handled correctly, most Will dispute cases can be resolved without the need for court proceedings and we try wherever possible to settle cases this way as it saves on the huge costs, stress of court proceedings and the reputational issues facing charities in these claims.
If the claim cannot be resolved, one of the parties will usually issue court proceedings and a Judge will decide after hearing all of the evidence at a trial if the Will is valid.
Prior to the trial, we will exchange documents which are relevant to the case and witness statements with the other side. If not already obtained, we will usually instruct an expert to prepare a report.
Costs if the case goes to trial
The general rule is the court will order the losing party to pay the winner’s costs.
However the court has discretion to depart from this rule in certain circumstances and may order the costs to be paid from the deceased’s estate, each party to pay their own costs or in unusual cases order the winner to pay the loser’s costs.
The winner will normally only be ordered to pay the loser’s costs where they have acted in a particularly deceitful or aggressive manner or have refused to mediate.
It is therefore imperative that the case is handled correctly from the beginning.
What should you do now?
If your charity suspects that a family member or beneficiary is going to question the validity of a Will, we can assist with advising you on the success of defending such a claim.
We successfully acted for the Executor in defending a Will challenge in the case of Ramsay v Ramsay  All ER (D) 32 (Sep). Click here to read our blog regarding this.
We can take action to try and settle the dispute and if necessary issue court proceedings on your behalf.
We can also assist in dealing with caveats lodged by beneficiaries to prevent the issue of a Grant of Probate, for example, by writing to the beneficiaries and asking them to remove the caveat they have entered.
The Probate Registry will automatically enter a request for a caveat on payment of a £20 fee and there is no need to produce any evidence in support of the Will challenge at this stage.
The caveat gives the beneficiary time to carry out investigations into the Will. It also allows time for negotiations and perhaps mediation to take place in an attempt to settle the case without the need for court action. We can take steps to settle the case by mediation so that your charity is able to receive the legacy it is due under the Will.
We can assist with resolving disputes regarding the validity of a Will quickly, avoiding any damage to your charities reputation and where possible, avoiding court action. If, however, litigation is the only option, we can assist charities with defending the maximum value of the legacy.
We offer a number of alternative funding options which include:
- Fixed fees.
- Hourly rates.
- Conditional Fee Agreements (no win no fee).
- Contingency fees.
- Before the event insurance.
We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.