The validity of the testator’s Will can only be challenged for a set number of reasons, including the below:
- The Will is invalid due to the required formalities not being met;
- The testator lacked the required mental capacity;
- The testator did not have sufficient knowledge of, and approve of, the Will and its contents;
- The testator did not make the Will of their own free will;
- The Will does not reflect the testator’s intention due to clerical error or failure to understand the testator’s intentions by the solicitor or Will writer; or
- The Will was forged or fraudulently prepared.
Each of the above reasons carries its own legal rules and criteria to be met in order for a Will to be found invalid on the balance of probabilities. Our previous blogs consider the criteria and application of each. The recent case of Oliver v Oliver is a good example in considering many of those challenges.
Oliver v Oliver
Background
In Oliver v Oliver, the Testator had previously made 2 mirror Wills with his wife, leaving his estate to their 5 children. After the death of his wife, the eldest son sought to poison the mind of the Testator and a later Will was executed leaving his entire estate to that son. The Testator’s daughter challenged that Will on a number of grounds, including:
- The Will was inadequately executed;
- The Testator lacked capacity;
- The Will arose as a result of undue influence; and
- The Will arose as a result of fraudulent calumny.
Execution of the Will
The Claimant alleged the Will had not been properly executed before 2 witnesses on the basis the Testator’s GP records suggested the Will was not signed by both witnesses as dated. The Court referred to previous case law and the presumption of a Will being correctly executed. Only with the strongest evidence may that presumption be rebutted and for this reason, the Will was found to have been validly executed due to the lack of significant evidence.
Testamentary capacity
Here the Court considered the case of Banks v Goodfellow, a longstanding case confirming the requirements for a testator to retain testamentary capacity. The Banks v Goodfellow test requires a Testator to understand the following in order to retain sufficient capacity:
- Understand the effects of making a Will;
- Understand the property of which they are disposing of in the Will;
- Understand and appreciate the claims which they should give effect; and
- To have no disorder of the mind that interferes with their sense of right or prevents the use of their natural faculties in disposing of property in their Will.
There was no dispute as to the first 2 parts of the test and it was accepted the Testator understood the effects of making a Will and the property he was disposing of.
The Court however found that the Testator was unable to appreciate the claims which they should give effect, on the basis he was unable to weigh up the relevant information, with his views reflecting those of the eldest son; and due to him attempting to leave all decision making to his eldest son. The Testator’s Alzheimer’s was also found to be sufficient so as to form a disorder in the mind that interfered with the exercise of his natural faculties. The Testator’s Will was therefore declared invalid due to a lack of testamentary capacity and probate in solemn form was granted in line with the Testator’s previous Will.
Undue influence
The Court was not required to consider the claims of undue influence and fraudulent calumny at length, given that the Will was now found to be invalid on the basis of lack of testamentary capacity. The Court did comment, however, that even in the event the Testator was found to retain capacity, the Will would remain invalid due to the undue influence of the eldest son.
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