Can a Will be disputed? A recent decision from the courts

Posted on April 2, 2019

The Courts are generally reluctant to overturn a Will and the threshold to disputing the validity of a Will is particularly high. When a Will is made the most common reasons for contesting a Will are a claim of lack of testamentary capacity or a claim of undue influence upon the testator (the person making the will).

Many of the cases in which one or both of the above claims are brought are often also accompanied by a claim of lack of knowledge or approval.

A Claim of Lack of Testamentary Capacity / Undue Influence

An increasing challenge on the validity of a Will are claims that the testator lacked capacity and/or the Will was procured by undue influence.

An ageing population and an increase in the frequency of illnesses such as dementia have seen a significant rise in challenges to the validity of a Will based on a lack of testamentary capacity. The Testator must be able to understand the nature of the act of making a Will and its effects, the property of which they are disposing and the people who are to be considered as beneficiaries.

Whether undue influence has procured the execution of a Will is a question of fact and would result where the Testator’s will has been overborne. The burden of proving it lies on the person who asserts it.

In the Courts

In the case of Nutt v Nutt (2018), a claim was brought by two siblings, whose mother had died at the age of 88. Mrs Nutt was a widow, with three adult children.

Mrs Nutt had prepared a Will in 2005 which was prepared by an acquaintance of Mrs Nutt who was a solicitor. This Will left her residuary estate between all three children. The claim was defended by the youngest child on the basis that the 2005 Will had been revoked by a later Will dated 7 April 2010 (‘the 2010 Will’), which left Mrs Nutt’s only property worth approximately £350,000 to her youngest child. The 2010 Will was on a pre-printed form and was completed in block capitals. It had not been prepared by a solicitor.

After preparing the 2005 Will, Mrs Nutt suffered a heart attack and had two stents fitted. In 2008 she developedPaget’s disease, a bone-weakening illness. By April 2009, she had limited mobility and was walking with a stick. However, the only mention in Mrs Nutt’s medical notes as to any issues covering her mental condition was an entry some 7 months after the date of the 2010 Will. A diagnosis of dementia in Parkinson’s disease is recorded in a letter in July 2011.

The Claimants pursued all possible channels and argued that the 2010 Will was invalid on the basis that it was not properly executed, that their mother lacked the testamentary capacity, the Will was procured by undue influence from the youngest child and that she did not know and approve the contents of the Will.

The Judge in reaching his decision based his conclusions on the records of Mrs Nutt’s mental condition found in her medical records and evidence of the witnesses who saw her at the time and were satisfied that Mrs Nutt had testamentary capacity when she executed the 2010 Will and found that the Claimants’ claims were unsupported by the evidence presented. The Judge commented that it was not for the Courts to decide whether the 2010 Will was justified or fair but only whether it was valid. The Court found that the 2010 Will was valid.

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