Some Cases On Will Validity From 2023
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, provide court cases from 2023 on key areas of Will validity law
In summary, what are the key factors determining whether a Will is legally valid?
There are a number but consider briefly the following page:
Will Validity – Will Claim Solicitors
In brief though, for a Will to be legally valid:
1. it must be signed by the testator (the person making the Will) in front of two witnesses who have also signed it.
2. the testator must have the capacity to make it and know and understand what it says.
3. it must be the testator’s own Will – not the wishes of another person (who has through undue influence or overwhelming pressure has procured it).
Capacity and knowledge/understanding are two distinct areas. The third is undue influence but finally and whilst the general rule is that Wills can be changed, revoked and/or amended at any time (by the testator and whilst he is alive!), it can sometimes be the case that the contents of the “original” Will (if it complied with certain “rules”) can be enforced, notwithstanding subsequent Wills (revoking the “original”) have been made. This is referred to by Solicitors as the concept of “mutual” Wills. It is the only occasion when so-called “mirror Wills” can be made binding.
Legal capacity
In Baker and another v Hewston 2023 an application was made to set aside or prove the invalidity of a Will on the basis of lack of capacity. The testator had dementia. Ordinarily one would assume that a person making a Will who was suffering from dementia would not be able to in law. It is an assumption, one supposes, that a high degree of capacity is required to be able to make a legally valid Will. Not so. Our earlier blog delved into this issue in much more detail:
What Capacity Is Required to Make a Valid Will – Will Claim Solicitors
Undue influence
Invariably this is hard to prove; the main witness (the testator) is dead and any other relevant witnesses are likely to have been involved in the undue influence and probably won’t want to confess!
Copley v Winter 2023 is an example of an unsuccessful claim.
Copley v Winter [2023] EWHC 1712 (Ch) (06 July 2023) (bailii.org)
It was unsuccessful despite the court finding the circumstances were “consistent with the hypothesis of undue influence” with it listing factors which were felt to point towards it to include that the that the deceased was old and vulnerable with the alleged wrong-doer giving misleading evidence. The most important factor (and a hurdle which it increasingly appears is most difficult to overcome) is that the Solicitor who prepared the Will gave convincing evidence that in her mind, there was no undue influence being exercised. It increasingly appears that if, as here, a Solicitor (someone independent) is involved in the Will writing and execution process, then undue influence is a difficult argument to sustain.
Knowledge and approval
As described above, for a Will to be valid the testator must know and approve or understand the contents of the Will. In other words, it must reflect his/her testamentary wishes.
Ingram v Abraham 2023 was a successful challenge against the legal validity of a Will based on lack of knowledge and approval.
The facts are curious. The deceased had a conversation with the First Defendant, Simon, during which she told him that she wanted him to prepare a Will. He did that for her and the terms of the Will were such that he inherited all of the estate. He alleged that he read the Will to her when he was driving to its execution with her. The Court found that the Will was not legally valid because the testator had wanted to give her estate to Simon so that he could hold it in trust for and distribute it to her children.
Mutual Wills – where a “mirror Will” can be found to be binding notwithstanding future Wills are made which revoke or change the contents
The point with mirror Wills as that just because (usually) a couple make Wills which are a reflection of each other with some vague promises not to revoke or change them, it doesn’t mean they can’t be changed and that the original “promises” are (in the main) unenforceable. This is invariably the situation. The enforceability provided by the concept of “Mutual Wills” only very rarely comes about.
Naidoo v Barton 2023 was a case about the creation of mutual Wills.
The Judgment sets out the key legal principles for the creation of mutual Wills.
1. There must be a contract between the parties making Wills compliant with the concept of mutual Wills, whereby it is agreed that their Wills cannot be changed;
2. However, the Wills DO NOT need to expressly say that the testators must not revoke – that agreement can be implied from the evidence;
3. The Wills must be intended to be mutually binding on one another ie there must be an agreement from both parties not to change their Wills, not just from one person to the other;
4. The binding agreement can be contained outside of the terms of each Will;
5. The burden of proving a Will is subject to the concept of “mutual Wills” is on the person alleging it.
In this case the Court had little hesitation in holding the Will in question to be “mutual” in nature given it (and the corresponding Will of the other party) was expressed on its face to be mutual. In an unusual twist however, the court set aside the Will on the basis of undue influence of one of the Defendants, it finding the making of a mutual Will to be unusual, about which it called for an explanation, which it felt was not forthcoming.
If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.
We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.