CHAPTER ONE
WILL VALIDITY

Assessing the Validity of the Will & the Practice

What are the proper formalities of the will?

Age

As a general rule, a testator must have reached the age of 18 at the time of making a Will (the Wills Act 1837, s.7).

Formalities

In addition, for deaths arising after 1 January 1983, Section 9 of the Wills Act 1837 (as substituted by the Administration of Justice Act 1982, s. 17) (‘the Act’) says that no Will is valid unless:

• It is in writing, and signed by the Testator, or by some other person in his presence and by his direction; and

• It appears that the Testator intended by his signature to give effect to the Will; and

• The signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time; and

• Each witness either:

  • attests and signs the Will;

  • or acknowledges his signature, in the presence of the Testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary.

In the event these formalities are not complied with the will reverts to intestacy.

TIP With respect to validity disputes, check carefully the will once you get your hands on it. Every aspect such as the typeface, date, attestation clauses.

What Is Intestacy?

In the event that the will is invalid you will either be left with the previous will or the rules of intestacy will apply.

What are the rules of intestacy?

When a person dies without leaving a valid will, their property (the estate) must be shared out according to certain rules. These are called the rules of intestacy. A person who dies without leaving a will is called an intestate person. Please see Appendix 1 for more details of intestacy. Also consider government rules https://www.gov.uk/inherits-someone-dies-without-will

What is the form of the signature?

The signature of the testator can be merely a mark ( for example a thumb print as in Borman v Lel)

Can Someone Below 18 Make a Valid Will?

Not unless they have privileged access.

Section 11 of the WA states the formal requirements do not apply to:

Any soldier being in actual military service, or any mariner or seaman at sea… though under the age of eighteen years

Where Does the Will Have to Be Signed?

It DOES NOT HAVE to be “at the foot or end thereof” (following the AJA 1982 s 17).

IT CAN BE SIGNED by someone other than the testator as it or her direction.

Who Can Prepare a Will?

Anyone can prepare a will.

Nevertheless suspicion will be raised if the person who prepares it is:

• A major beneficiary

• A close relative of a major beneficiary

• A partner of a major beneficiary

There is no rule that prohibits one of the above preparing the will but suspicions will be raised.

What Mental Capacity Do You Have to Have to Make a Will?

The common law standard was laid down in Banks v Goodfellow and remains the leading case which is that the testator must:

1. Understand the nature of his act (sound mind) that is he is making a will and its effects?

2. Understand the extent of his property being disposed of (sound memory) though he/she not need remember every one of his assets

3. Be able to comprehend and appreciate the claims to which a person making a will ought to give effect (sound understanding)

Consider the Interplay With the Mental Capacity Act 2005 (MCA)

Overall it is still unclear as to the Mental Capacity Act 2005 (MCA) which came into force on 1^st October 2007 as to the impact upon mental capacity.

The Courts have not given clear guidance as to what extent the MCA applies to the issue of testamentary capacity.

In Scammell v Farmer the Deputy High Court Judge ruled against the application of the MCA because the case was not within the “purposes of the Act” and secondly, because the relevant will had been made before the Act came into force.

Judicial ambiguity rules since this point so the key is to focus on the common law legislation in formulating your client’s case.

Was the Golden Rule Applicable and if So Was It Applied?

What Are the Key Duties of Legal Practitioners?

If a will has been prepared by a solicitor, it creates additional obligations upon them.

The Golden Rule

The ‘Golden Rule’ was set out in the judgment of Templeman J in Kenward v. Adams (1975) The Times 29 Nov:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding”.

While the golden rule has been widely approved by the Courts as having the potential to reduce the risk of a claim of lack of testamentary capacity (e.g. see Sharp v. Adam), and should therefore be offered to testators as an additional precaution even if not observed.

The rule is expressed to apply to two categories of testator, namely those who are ‘aged’ or have suffered a ‘serious illness’, and therefore the next step is to consider which illnesses are ‘serious’ for this purpose, and how old ‘aged’ is.

The case of Re Simpson [1977] 121 SJ 224 provides that there is one golden rule that is to be observed, however straightforward the will and however tactless the suggestion, that the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.

Will GP Evidence Suffice to Prevent a Successful Validity Claim?

If it is assessed that medical evidence is appropriate in the circumstances then the initial point of contact would be someone who knows the client, most often their GP. However, the suggestion that a GP assessment will suffice has been met with some criticism. It has been suggested that, in order for the golden rule to have substance, a specialist should be approached.

On the other hand, the associated cost, delay and apprehension that can be felt by a client in seeking further specialist advice can potentially cause an adverse reaction.

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):

1. 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

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

3. If a real doubt is raised, the evidential burden shifts back to the propounder to estabslih capacity nevertheless.

Provided the testator had testmentary 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 recent 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.

Case: Brennan – v – Prior 2013] EWHC 287(ch)

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”.

Recently 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.’

Presumption of Due Execution

In the case of Channon v Perkins it was aid that where the will had a full and valid attestation clause and represented the deceased’s wishes, there must be cogent and clear evidence, i.e. testimony which constitutes ‘the strongest evidence’, to overturn a will.

What Are the Pre-Court Steps to Take?

Due to the expense of going to Court as solicitors you need to be careful prior to commencing legal proceedings.

Ultimately the ability to challenge a will is dependent on a series of variables which focus on assessing the evidence?

1. Get The will & review it. To attack the validity of the will you need to obtain the will – If a person refused to provide the will an application can be made for the issue of a witness summons via the Senior Courts Act. It is important to scrutinise it and check as you see the formalities have been complied with.

• Is it handwritten or not? If a beneficiary handwrote the will then this will evidence that will raise suspicion.

• Is It Consistent? If a significant beneficiary handwrote the will the more likely it is to be attacked later.

• How complex is the will? The more complicated it is the more likely that it can be attacked for lack of knowledge and approval particularly if there are doubts over the mental capacity of the testator

• Who were the attesting witnesses? Could they have been in any way influenced? (An approach can be made to the attesting witnesses regarding the deceased’s state of mind

• How was the will executed?

• What about the signature? Does this match the testator’s signature on other documents? Was it shaky?

• Has the deceased made a previous will? If so, was there a significant change on the previous will? Does anyone benefit in a different file?

2. Get the will file if a solicitor has been instructed. This will include all the documents and can be done via a Larke v Nugus letter.

What Is the Point of a Larke v Nugus Letter?

In the case of Larke v Nugus, the Court of Appeal refused to order those challenging the will to pay the costs of the challenge even though the will was found to be valid. This was because the solicitor who had prepared the will refused to make information available at an early stage which, had it been given, could have prevented a full trial.

The purpose of a Larke v Nugus letter is to prevent money being spent on litigation by the provision of early legal disclosure and to reveal evidence which can be key to probate dispute. The onus is on the receiving solicitor to provide a prompt reply and relevant evidence to facilitate early settlement. Thus, the solicitor should provide a full response to a request within a reasonable period, for example: two to three weeks and provide key parts of the will file.

What is The Content of Such a Letter?

The form is an effective question process which will include such questions as how long the Solicitor had known the deceased, the date the Solicitor received instructions from the deceased, notes of all meetings and telephone calls, including confirmation of where the meeting took place and who else was present at the meeting. All relevant if you have concerns over the validity of will.

How Useful Are They?

Often, very. It will often indicate whether the Solicitor correctly advised the deceased, whether there were individuals present at instruction/execution to support allegations of undue influence and whether the Solicitor undertook the correct test for testamentary capacity. Can reveal a crucial evidential point. If you are going to attack an aspect of the will making process this is where you must go.

3. Assess Medical Evidence

The Access to Health Records Act 1990 s 3(1) (f) provides that an application for access to health records may be made by “the patient’s personal representative and any person who may have a claim arising out of the patient’s death.” If medical records suggest a loss of capacity, one can request a retrospective report.

Legal Proceedings

Validity disputes are brought about in the Chancery Division of the High Court CPR Practice Division 7A sets out the rules deciding whether proceedings should be commenced in the High Court or County Court.

Generally, £25,000 is the lower limit for issuing any non-personal injury case in the High Court.

https://formfinder.hmctsformfinder.justice.gov.uk/n1-eng.pdf

Probate Claims follow the CPR Part 7 procedure but are modified in the following ways:

• The time limit for acknowledging service is 28 days after service of the particulars of claim.

• The time limit for filing the defence is also 28 days after service of the particulars of claim.

Once the action has started the relevant Court will contact Leeds District Probate Registry asking that all testamentary documents, grants of probate and any other relevant documents are sent to the relevant office.

Limitation Period

There are no specific limitation period in probate claims although the defences of laches and acquiescence apply.

Other Parties

Those who are entitled under the will at issue or a previous will or on intestacy together with anyone claiming entitlement to administer the estate as Personal Representative should be joined as a party to the action.

The relevant court rules in helping to make this decision are:

CPR r 19.6 to 19.8a

The claim form should be served within 4 months of issue.

Pre-Action Protocol

There is no specific protocol for validity disputes but parties in order to comply with this need to exchange as much as information as possible to allow themselves to understand the side’s position as much as possible.

Make appropriate attempts to resolve the case by ADR if possible.

In addition, practitioners should comply with the ACTAPS Practice Guidance Notes.

• recommending and providing a precedent for a letter of claim encompassing and adaptable to various types of dispute or claim (e.g. Inheritance Act claims)

• by providing lists of evidential documents to be produced in different types of disputes

• by promoting the early production of medical and social security records and evidence and providing precedent letters to that end (including a letter to a testator’s GP agreed with the BMA)

• by providing for early production of evidence of testamentary capacity and a precedent Lark -v- Nugus letter to the testator’s solicitor

• by suggesting reasonable time limits

• by providing for cooperation in obtaining joint and third party letters of authority to disclose evidence

• by reproducing the new CPR covering the representation of unborn, minor, unascertained and incapable parties

• by encouraging mediation on the footing that the outcome will be subject to the approval of the Court in those cases where such approval is indispensable, and

• by providing for those cases where Revenue considerations arise.

If matters are not moving forwards, issue a 21 day letter before action.

TIP When you are getting into the realms of threating legal action, think carefully about your correspondence not just in terms of showing the legal flaws of the other side’s case but more about how to influence the other side.

Judgement in default cannot be obtained for probate claims.

Once a case has been started under CPR 57.11 case cannot be discontinued.

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