#14791 - Example Conference Contesting Validity Of Will - BPC Property and Chancery

Contesting the validity of a Will

1. Lack of “testamentary capacity”

2. Lack of valid execution (s9 WA 1837)

3. Lack of knowledge and approval of the contents of a will

4. Undue influence

5. Fraud or forgery

6. Document not a will

7. Document revoked by later will or subsequent action

8. Person prevented from leaving certain assets in their will due to a prior agreement

9. The true meaning of the will, where it is ambiguous

Conference Matters:

1. Whether the will can be contested, and, if so, on what grounds

2. Whether a gift can be challenged

3. In outline, on the Court procedure for any challenges to the will

Contesting the Validity of the Will

Lack of “testamentary capacity”

For a person to make a valid will they must be of sound mind. The legal test is set down in the 1870 case of Banks v Goodfellow:

• Whether the testator understood the nature of the act and its effects

The testator must have understood such things as:

• that theWillcould be revoked

• that it operated only on death

• the rationale behind the appointment of executors

• the effect of beneficiaries predeceasing them

• Whether the testator understood the extent of the property of which they were disposing

  • such as whether the testator had any property in joint names or in trust that would not have been affected by theWill

• Whether the testator was able to comprehend and appreciate the claims to which they ought to give effect

  • The irrationality or eccentricity of theWillraises no adverse inference if the testator appreciated their moral obligations to those it could reasonably be said they may owe a duty. Leaving nothing to their spouse and/or children is not a sign of a lack of testamentary capacityas long as the testator knew of their existence and realised they were excluding them after reasoned reflection

• Whether the testator was subject to an insane delusion that would influence theirWillin disposing of their property and bring out a disposal of it that if the mind had been sound, would not have been made

  • Muchwilldepend on the form that the delusion took. If the delusion did not affect the manner in which the testator disposed of their property, itwillnot invalidate theWill. For example, a fear of evil spirits had no effect on the disposition of a testator's property nor on his decision on beneficiaries and theWillwas held valid

  • Where an irrational aversion to his daughter directly affected a testator's decision on the disposition of his assets, theWillwas ruled invalid (Dew v Clark(1826) 3 Add 79)

For the purposes ofMCA 2005, s 2a person lacks thecapacityto make a decision if they are unable to:

• understand the information relevant to the decision

• retain that information

• use or weigh that information as part of the process of making the decision or

• communicate his decision (whether by talking, using sign language or any other means)

The capacity to make a will may therefore vary depending on the complexity of the testators affairs and family situation. It may also be dependent on the degree of assistance and explanation which the testator is afforded at the time of making the will.

I understand your instructions:

How was your relationship with XX?

How was XX acting?

How was s/he coping with the illness?

Was s/he suffering from any delusions?

How was his/her memory?

Physically and mentally weak – explanation needed

Family record of mental illness?

I understand that the nurse ensured that s/he took her medication at the correct time, how about day to day activities – was s/he able to cope with that by him/herself?

What were the nurses ultimate duties?

Is the nurse present/required at all times?

How was his/her interaction with the nurse?

How was his/her interaction with your sister?

Key v Key [2010]: A husband gave instructions for a new will just a week after his wife of 65 years had passed away. Understandably he was devastated because of the loss of his wife and it was held that his devastation led to symptoms akin to dementia leading his will to be set aside.

Evidence to establish capacity:

• Medical Records may provide clues

• Will making file

• Evidence of anyone who knew the testator

• Requirement that solicitor prepare statement as to circumstances of the preparation of the will.

If proven the whole Will will be invalid. This is subject to the exclusions – Statutory Wills; Parts of wills not affected by delusions.

Lack of valid execution

In a claim for lack of valid execution, also known as ‘lack of due execution’, a will is invalid if it fails to meet one or more of the following requirements (as set out in s.9 Wills Act 1837):

• The will must be in writing and signed by the testator or signed by someone else in their presence, who has been directed to do so by the testator.

• It must appear that the testator intended by their signature to give effect to the will.

• The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time.

A will must be:

1. In writing

2. Signed by the testator

3. That signature must be made or acknowledged in the presence of two (2) witnesses present at the same time

4. Those witnesses must sign the will in the presence of the testator

The witnesses need not know that the document is a will. It is sufficient that the witnesses see the testator in the act of writing his signature, although they ever see the signature and do not know what he is writing But the requirement is not satisfied if a witness, although present in the same room, is not aware that the testator is writing. Furthermore, if a witness leaves before the testator completes his intended signature, the requirement is not satisfied [Re Colling [1972] 1 WLR 1440].

I understand that you were present during the signing

Were you present the whole time?

Who else was present?

Witnesses

Your relationship with them?

How did they act?

How did they carry themselves?

How XX interaction with them?

Writing

Confirm that it is in writing.

Signed by testator

Confirm that XX signed the will

Signature made or acknowledged in presence of two (2) witnesses present at the same time

Confirm that there are at least two (2) witnesses

Witnesses sign will in the presence of testator

Confirmed witnesses signed in the presence of testator

I understand that during the actual signing, Witness went out of the room –

When was this?

What exactly happened?

What happened after?

Did you see the will?

Was there an attestation clause?

What happened to the will after?

Was it registered?

If the signature on the will was not made in the simultaneous presence of two witnesses, the signature must subsequently be acknowledged by the testator in their simultaneous presence. There are three requisites for a valid acknowledgement:

1. The will must already have been signed before acknowledgement

2. At the time of acknowledgment the witnesses must see the signature or have the opportunity of seeing it. If, at that time, the signature is covered by the folding of the will, or with blotting paper there can be no valid acknowledgement: it does not suffice that the testator would have uncovered the signature and allowed the witnesses to see it had he been asked

3. The testator must acknowledge the signature by his words or conduct.

An attestation clause will usually, but not always, provide sufficient evidence that both witnesses were present when the testator signed or acknowledged the will.

Kentfield v Wright: the testator’s daughter alleged that only one witness was present at the signing of the will but it was held that the “strongest evidence” was required to rebut the presumption of due execution. The will was upheld.

Ahluwalia v Singh: Despite the presence of the attestation clause, there was evidence that the two witnesses signed separately, had no recollection of signing together and did not both see the testator sign the will. The will was invalid. The distinction between the two cases is the strength of the available evidence put before the court.

• Each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness.

• The legal presumption is that a will has been validly executed unless there is evidence to the contrary such as doubts over any of the above factors.

There are also strict rules about who can and cannot witness a will.

A will must be witnessed by at least two (2) witnesses, both of whom must see the testator signing or acknowledging their signature. Each of them must sign the will in the presence of the testator.

Where the witness of a will is also a beneficiary, the will still be valid but the gift to the beneficiary fails.

Lack of knowledge and approval

A person must have knowledge of, and approve of, the content of their will. They must know that they are signing a will, and approve of its contents.

Gill v Woodall: The Court of Appeal confirmed the correct approach to considering knowledge and approval, as asking a single question: did the testator understand

(a) what was in the will when she signed it; and

(b) what its effect would be.

Even if the will had been validly executed and the testator had mental capacity, if it can be shown that the testator was not aware of the contents or there were suspicious circumstances, this may lead to the will being invalid.

It is possible to contest a will on the basis of a lack of knowledge and approval even if the will appears to be validly executed and the testator had mental capacity. It must be shown that the testator was not aware of the content of the will or that there were suspicious circumstances.

For instance,...