A will can be contested on the basis that it is invalid by relying on one or more of the following grounds:
- The Will has not been correctly executed;
- The testator lacked the necessary mental capacity;
- The testator lacked knowledge or approval of the contents of their Will;
- The testator was subject to undue influence;
- The Will is forged/fraudulent.
It is fast becoming apparent that sadly the pandemic may have given rise to the perfect storm for will challenges on one or more of the above grounds.
The Wills Act 1837 provides that in order that a Will is correctly executed it must be signed by the testator in the presence of two witnesses who must also sign the will in the testator’s presence. The first lockdown bought about by Covid-19 pushed the Ministry of Justice to amend the rules around the execution of wills to allow for them to be witnessed remotely up until January 2022. Whilst such a change was largely well received at the time in order to enable those wanting to do so to get their testamentary affairs in order, practitioners in the field of contested wills were immediately on high alert to what may follow.
In order to establish that an individual has sufficient mental capacity to make a Will they must understand the following:
- The nature of the act of making a Will and its effect, i.e. that they are setting out to whom they wishes property to pass on death;
- The extent of the property; and
- The individuals for whom they are 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. More often than not the file of the solicitor who prepared the Will is best place to start when considering if a testator had sufficient testamentary capacity. However during the pandemic, solicitors were restricted in their access to their clients forced to take instructions remotely whether by video or telephone call. This physical distance between client and adviser may well make the solicitors file a less persuasive form of evidence in defending a challenge on the basis of lack of capacity.
It should also be noted that when making a Will for an elderly or ill testator, or anyone with dubious testamentary capacity, it is best practice for the solicitor to obtain a written medical opinion and, if possible, to arrange for a doctor to witness the signing of the Will. Such a step would have been significantly harder during lockdown and if done remotely again the effect likely diluted.
Knowledge and approval
Hand in hand with a capacity challenge invariably comes the possibility of a challenge to the validity of a Will on the basis of want of knowledge and approval. 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 and it seems likely that there will have been an increase in such Wills during the pandemic.
If a testator is not in the same room as the witnesses, and indeed the two witnesses have a restricted view of the testator when signing the Will because of the limitations of the screen on an electronic device, how can they know with any degree of uncertainty who is with the testator at that time? Thus, almost immediately the possibility of undue influence and/or fraud in relation to the Will can be bought into the frame.
An undue influence claim comes about if 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). 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. During the pandemic in circumstances whereby the testator’s contact with the outside world could quite possibly have been very limited and they could have been in the company of a family member or carer alone for an extended period of time it is easy to see how suspicions may arise should a testator have made a Will, or significantly changed a Will, during this period that significantly benefits that individual.
It is also noteworthy that the pandemic has amplified mental health, depression and alcohol or substance abuse issues for vulnerable people and this can be relevant particularly in the context of capacity and undue influence
Forged or fraudulent
Finally, in the context of the pandemic mention should be given to the period of delay between the testator signing the Will and the witnesses signing the Will that the remote witnessing of Wills allows. This gives rise to the possibility that the Will is intercepted between leaving the possession of the testator and receipt by each of the witnesses and altered in some way. Again, if a Will is handmade this will make it particularly hard to identify any changes made in this way (a solicitor should have a final copy on file).
In the last few months we have already seen an increase in enquiries relating to Wills made during the pandemic. The self-isolation and social distancing bought about as a result of the coronavirus pandemic left the vulnerable, elderly and incapacitated exposed and the measures in place to make a Will whilst necessary opened the door wider to significantly more risk in terms of executing a valid Will.
If you would like further information on any of the topics raised on this blog, please see our Dispute Resolution webpages, or contact the author.
ABOUT THE AUTHOR
Katherine Pymont is a Senior Associate in our Dispute Resolution team. She specialises in Wills, Trusts and Inheritance Disputes. Katherine's experience includes challenging the validity of wills (including claims for lack of testamentary capacity, want of knowledge and approval, fraud, forgery and undue influence), claims under the Inheritance (Provision for Family and Dependants) Act 1975, removal of executors and trustees, breach of trust claims, fraud cases involving trust structures and professional negligence claims relating to wills and trusts.