Contested Will: who proves what?

 In Wills

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contested wills

I was recently involved in a case where the issues of testamentary capacity and undue influence were raised by the beneficiary of an earlier Will whose gifts were substantially changed by a later Will. This case may come to court, so I shall not comment on the details of the case at all other than to outline the dispute.

In the light of the way in which the case was being handled, I thought it might be useful to remind people of some of the issues that can commonly arise in a case of a contested Will and who has the burden of proving what in relation to each of those issues.

Due execution

A Will that appears on its face to have been duly executed is presumed to have been validly executed, unless the contrary is proved – see Harris v Knight (1890) 15 PD 170.

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This is called the presumption of due execution and it is an evidential presumption which can be rebutted by evidence although it will be difficult to rebut that presumption in cases where the testator has signed next to an attestation clause and where the witnesses have signed beneath that attestation clause – see Sherrington v Sherrington [2005] EWCA Civ 326, [2005] WTLR 587.

The burden falls on the person challenging the due execution of the Will and it is satisfied on balance of probabilities.

Testamentary capacity

Once the testator’s capacity is brought into question, the executor or other person propounding the validity of the Will must prove to the satisfaction of the court that the testator did in fact have capacity at the time that he or she executed his or her Will – see Tchilingirian v Ousourian [2003] All ER (D) 76.

There is a tactical burden on the person challenging the testamentary capacity of the testator to overcome – this may be discharged by producing medical evidence or showing a significant departure from provision made under a previous Will – see Westendorp v Warwick [2006] All ER (D) 248. The mere fact of such a significant departure from earlier provisions will not be sufficient, however the court will consider whether there is a change of circumstances in the intervening period that explains the change – see Cattermole v Prisk [2006] 1FLR 693.

Following Scammell v Farmer [2008] EWHC 1100 (Ch) [2008] All ER (D) 296 (Apr), it is clear that the test for capacity in the Mental Capacity Act 2005 applies only for the purposes of that Act (indeed, section 1(1) states that it does), such as whether or not a statutory will ought to be made for an individual. As a result, although it may be thought that the burden of proof has been changed by section 1(2) of the Act coming into force (on 1 October 2007), it is clear that the common law test continues to apply in a contested will situation where the argument is not related to issues arising from the Act

The legal burden on the person propounding the Will is satisfied on balance of probabilities and it has been suggested that better evidence will be required where there are suspicious circumstances surrounding the preparation of the Will and the deceased has a failing mind – see Hoff v Atherton [2004] EWCA Civ 1554.

Want of knowledge and approval

Where the testator has testamentary capacity and the Will has been duly executed, the court will presume that the testator knew of and approved the contents of the Will – see Sherrington v Sherrington [2005] WTLR 587. However, the court must be satisfied that the instrument expresses the true intentions of the testator – see re Fuld (No.3) [1968] P 675 @ 698-699.

The person challenging the state of the testator’s knowledge and denying that the testator approved of the contents of the Will has a tactical burden to overcome. Where there are suspicious circumstances surrounding the execution of the Will, the burden of proving that the testator knew of and approved the contents of the Will passes to the person seeking to establish the Will.

The legal burden to prove that the testator knew of and approved the contents of the Will is on the person propounding the validity of the Will and it is satisfied on balance of probabilities.

Undue influence – coercion

Where there is a challenge to a Will, ‘undue influence’ means actual undue influence or coercion – see Wingrove v Wingrove (1885) 1 PD 81. There is no presumption of undue influence in such cases.

To establish undue influence, it must be shown that the Will of the testator has been overborne such that it is not a free and voluntary action. Where a testator is shown to be frail, a lesser degree of pressure may be sufficient to satisfy a court that the Will of the testator has been overridden – see re Edwards [2007] EWHC 1119 (Ch). In addition, the will of the testator may have been overcome where the person influencing the testator has deliberately or recklessly poisoned the testator’s mind against one of the potential beneficiaries of the estate.

An allegation of undue influence is a serious allegation and the more serious the allegation the more compelling the evidence to prove it is required – see re Edwards [2007] EWHC 1119 (Ch).

The person claiming that the testator has been unduly influenced has the burden of proving the allegation and it is satisfied on balance of probabilities.

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