The national press carries the somewhat bizarre tale of a woman in her twenties who married a retired school lollipop man, aged 76, who claimed that she’d found his most recent Will (leaving the vast bulk of his £600,000 estate to her rather than his daughter by a previous marriage) in an empty Doritos packet in the attic of the family home in Harrow Road, Wembley.
The Daily Mail story tells how Marsha Henderson married ex-London bus conductor Newton Davies in 2004. He died in 2013 aged 85 and in a Will dated July 2011 left Ms Henderson £25,000 with £430,000 left to his daughter Paulette Davies and £140,000 going to an old friend. The ‘Doritos Will’ dated November 2011 apparently discovered by Ms Henderson reversed those bequests.
It may strike you that putting an important document such as a Will into a Doritos bag in an attic is a bit eccentric, not to say suspicious, but there are eccentric people in the world. That in and of itself, would not be grounds for challenging the document. However Ms Davies was able to convince a judge that her father signed his last true Will in July 2011, claiming that the more recent document was a forgery.
The Will’s most striking defect was that the attestation clause referred to it being ‘HER last will.’ As the judge pithily remarked: ‘the deceased was a man and not a woman.’
Correcting a will
Not all challenges to a Will may be as clear cut and obvious as that. The Administration of Justice Act 1982 allows a Will to be rectified if a court is satisfied that it does not express or carry out the testator’s true intentions. This particular challenge is only successful if there is clear evidence that the Will does not reflect the intentions of the person who made it (the testator) or there was a typographical or clerical error (e.g. inadvertently mistyping a legacy clearly intended to be £1,000 as £100) or a failure to understand the testator’s clear instructions by whoever drew up the will. Although the Henderson case may have been an exception due to the amateur and obvious attempt at deception, challenges to Wills on the grounds of forgery are notoriously costly and difficult to prove, involving for example the use of handwriting experts to dispute a signature.
Disputing a Will on grounds of undue influence or lack of capacity
Other approaches do not dispute the validity of the actual document itself. Instead a challenge can be made by showing that there was an element of coercion, manipulation, deception or intimidation by another party to put pressure on the person making the Will and influence its content to their advantage – what’s termed undue influence. The other avenue is to prove that the testator lacked testamentary capacity by demonstrating that they did not understand what they were doing at the time they made the Will.
Again, both these approaches are time consuming, costly and can be protracted. Demonstrating undue influence requires proof that the person making the Will was coerced by someone else at the time they made their will. Coercion can range from the use or threat of physical violence to more subtle pressures, like threatening to harm a loved one. Without that evidence of obvious ‘coercion’ any influence applied will not be considered ‘undue’.
Disputing a will based on a lack of testamentary capacity requires evidence that the testator was not mentally capable at the time of making the will. Obviously, since the person who made the will is now dead, evidence in either case can only be obtained through assessment of historic medical or psychiatric and other records by experts and evidence from witnesses who came into contact with the testator at the time the Will was made.
Inheritance (Provision for Family and Dependants) Act 1975 claims
By far the most effective means of challenging the provisions in a Will and the approach usually thought most likely to succeed is using the Inheritance (Provision for Family and Dependants) Act 1975 (“Inheritance Act 1975”). Using the Inheritance Act 1975 means that you accept the will as a perfectly legal and legitimate document in all respects. Instead any challenge is based on arguing that not enough was set aside for you in the Will, given that you had some direct connection or relationship with the deceased and were financially dependent on them up until their death.
Although seemingly the most straightforward approach to disputing a Will, the legal battle in the widely publicised Ilott v Blue Cross case took 10 years to reach a conclusion, culminating in a Supreme Court ruling that overturned a previous decision made by the Court of Appeal. This was the first time that the Supreme Court had been asked to consider the provisions of the Inheritance Act 1975 and the judgement confirmed that even this is an exceedingly complex area of law that can only be used with the help of expert legal advice. Clearer guidelines from parliament on how judgements should be reached in claims involving the Inheritance Act 1975 would help, but every individual case will be decided on its own merits.
The implications of Ilott v Blue Cross
The complexities involved in contesting a will have been highlighted by the Supreme Court ruling in Ilott v Blue Cross. Those unhappy beneficiaries seeking to reverse a disinheritance may be best advised to reach settlement through mediation and negotiation with the input and guidance of a solicitor in order to avoid drawn out court proceedings. Most inheritance disputes are settled eventually, but claimants are increasingly prepared to take things as far as they can because the value of estates makes it worthwhile doing so.
In many parts of the country any estate involving property will be sufficiently valuable to persuade potential claimants that it is worth disputing. Less ‘conventional’ family structures mean potential beneficiaries who feel ignored or disgruntled could also contemplate mounting some sort of challenge. Whichever means of disputing a Will is selected, the process remains complex and emotionally challenging. Failing to win a claim can be ruinously expensive, making it even more important that, when you do decide to challenge a Will, you obtain the best objective legal advice available to provide clarity, security and reassurance.