Call 01279 215580

Will Validity - The Key Areas

Posted: Thursday, 19 October 2023 @ 15:40

With respect to Will Validity, some useful (legal points) to consider include:  

What Is the Burden of Proof?

The common law rules regarding burden of proof concerning testamentary capacity are set out in Key v Key (2010):

i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face then the court will presume capacity.

ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.

iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity, nevertheless.

Provided the testator had testamentary capacity at the time the will was signed and witnessed it may not matter if the testator loses full capacity.

Generally, the time to test whether capacity existed is the time of execution of the will.

However, the dates and still valid case of Parker v Felgate confirms that, in limited and defined circumstances, a Will can still be valid, even if the testator loses capacity between giving instructions and signing the Will. As long as T had capacity when giving instructions, Parker v Felgate confirms that a much lower degree of understanding is necessary when the Will is signed.

A case of Clancy v Clancy (2003) shows that this is good law.

Knowledge and Approval

The testator must know and approve the contents of the will (this is not applicable to a statutory will).

The legal test is that the testator must know and approve the contents of the will at the time of execution.In all cases, however, and irrespective of age, it is necessary to provide clients with proper advice and to assess whether it is necessary to obtain medical evidence.

Further, a client should be advised that, in the event of a subsequent challenge to their will on the basis of lack of capacity, a lack of contemporaneous medical opinion may make the challenge more likely to succeed. 

The case of Brennan v Prior provides a useful illustration of how the Courts assess claims that a testator lacked knowledge of, or did not approve, the contents of his or her Will.

To admit a Will to proof, the court must be satisfied that the testator understood what he was doing and its effect so that the document represents his testamentary intentions.

It is for the party seeking to propound the Will to show that the testator understood his Will.

Where a Will was executed in accordance with the formalities set out in section 9 of the Wills Act 1837 by a person with testamentary capacity there is usually a presumption the testator knew and approved its contents.

In addition, a “very strong” presumption exists where the Will was prepared by a solicitor and read over to the testator before execution.

A party seeking to propound a Will may not be able to rely simply on due execution and capacity where the circumstances surrounding its preparation or execution “excite the suspicion of the Court” – where the Will was drafted by a person who benefits under it or contains complex provisions which the testator was unlikely to understand.

A party seeking successfully to challenge a Will must produce evidence of circumstances which leaves the Court not satisfied that, on the balance of probabilities, the testator understood its nature and effect, and sanctioned the dispositions it made.

As a matter of policy, the Court is cautious about accepting such challenges. Wills frequently give rise to feelings of disappointment for would-be beneficiaries which can lead to contentions that the Will did not reflect the testator’s true wishes. If judges were too ready to accept such contentions the principle of testamentary freedom could be undermined.

Given this it is critical that the lawyer is satisfied that there is strong evidence to show an absence of knowledge and approval from the testator.

Undue Influence & Persuasion

Sir James Hannen further defined undue influence in the context of probate in Wingrove v Wingrove (1885) as being “To be undue influence in the eye of the law there must be – to sum it up in one word – coercion”.

The case of Brennan v Prior & Others [2013] EWHC 287(ch) illustrated that persuasion was due influence in which Ms Brennan challenged the will alleging undue influence by the siblings. However, dismissing Ms Brennan’s challenge, the judge said that evidence did not support her accusations of dishonesty; there was nothing irrational about the testator’s bequests, and that while there ‘is plenty of evidence that [his sisters] had the opportunity to influence [the testator] in the making of his will…I find persuasion but not coercion.’