Challenging a Will in the UK: Lessons from The Inheritance

When father-of-three Dennis (Larry Lamb) dies unexpectedly, his adult children are left bereft. But their grief is quickly overshadowed by anger, confusion and suspicion when they learn that he had secretly married and changed his will to benefit his new wife (Susan) and that they will not be receiving their anticipated inheritance from his estate.

Questions that arise from The Inheritance that are important to the children

In The Inheritance, it is important to note that we do not know the date of the Will that benefits Daniel, Sian and Chloe (“the children”). If this Will was dated before Dennis’ secret marriage to Susan, then it would be deemed to be invalid as marriage would invalidate a previous Will and the Estate would pass under the Intestacy Rules.

How would Dennis’ Estate devolve under the Intestacy rules?

Susan as spouse will receive:

all the personal property and belongings of the person who has died, and
the first £322,000 of the estate, and
half of the remaining estate.

Daniel, Sian and Chloe will receive the remaining half of the Estate in equal shares.

At present, whilst we have seen the children speak with the coroner to raise their concerns about their late father’s demise, and they have mentioned that they intend to challenge the last Will we have not seen them actually take legal advice.

How can the children challenge the Will?

It is important to note that even if the children are successful, they may be stuck with the above scenario under the Intestacy Rules, or a competing claim by Susan, so it is very important that Daniel, Sian and Chloe take independent specialist legal advice.

Ways to challenge a Will

Lack of formalities

In order for a Will to be valid it must be:

in writing;
signed by the testator (or someone else in the testator’s presence and at his direction); and
the testator must intend when signing the will for it to be valid.

Also, the testator’s signature must be acknowledged in the presence of at least two witnesses.

This could be investigated by the children but as a Solicitor (portrayed, pretty harshly in The Inheritance) it is likely that Dennis’ last Will was validly executed.

The Will is invalid for lack of capacity

Dennis will be presumed to have had capacity as at the date he executed his last Will. It will be for the children to allege that he lacked capacity.

The legal test for capacity is that Dennis must:

understand the nature of making a will and its effect;
understand the extent of his property;
be able to comprehend and appreciate the claims to which he ought to give effect; and
have no disorder of the mind which shall poison his affections, pervert his sense of right, or his will in disposing of his property.

A person will lack capacity if, at the time in question, he is unable to make a decision for himself because of an impairment of, or a disturbance in, the functioning of the mind or brain.

The children will need to evidence the fact that Dennis lacked capacity. A review of Dennis’ medical records and a retrospective medical report may be required.

The Will is invalid due to lack of knowledge and approval

The children may want to investigate whether Dennis fully understood how the Will would operate and approve its contents.

Examples of suspicious circumstances could be:

if the deceased had a hearing or speech impediment;
if the deceased was vulnerable due to illness or circumstance;
if the deceased was visually impaired;
if the deceased had low levels of literacy; or
is purported to have directed that the Will be signed by someone else.

The Will was procured by way of undue influence (coercion) fraud or fraudulent calumny

This appears to be one of the main allegations made in The Inheritance, especially from Daniel, who is desperate to receive his inheritance due to his financial indebtedness and relationship with loan shark Glen. Daniel really should NOT have spent his inheritance before he received it. It is important to note that there can be a delay with obtaining a Grant of probate or a Grant of Letters of Administration and a subsequent delay whilst the administrators delay distribution pending any claims being brought against the Estate (usually 10 months after Grant).

Undue influence is difficult to prove and should be pursued with caution subject to specialist legal advice.

For a claim to succeed the court will need to be satisfied that there is “no other reasonable explanation for the testator’s actions” than that undue influence was applied.

It must be proved that Dennis acted against his own free will, and that he was coerced into making a Will that that he did not wish to make.

The nature of the allegation requires a high evidential burden. There are likely to be substantial cost risks if the children are unsuccessful.

In this case, it is usual for a spouse to be left an inheritance, so that would not raise the Court’s suspicions and the spouse may have competing claims against the Estate if this allegation was to be pursued by the children. It is important to know that there are things that a parent can do to ensure that a second marriage spouse, and first marriage children, are provided for in his Will and specialist legal advice is important when taking steps to make a Will. Dennis could have provided Susan with a life interest in his Estate which could pass to the children when Susan dies.

It is unlikely in the circumstances of The Inheritance that there has been any fraud in relation to the preparation of the Will. The fact that Dennis used a professional solicitor to prepare his Will assists Susan in this regard especially if the Will was witnessed by the solicitor who prepared the Will.

Fraudulent Calumny is where a beneficiary of a Will turns the testator against another beneficiary by making untrue comments about the character of another beneficiary. It is hard to see how this could be relevant to the facts in The Inheritance.

The Will does not reflect the testator’s wishes (Rectification)

This is where there has been an administrative mistake and will be pursued on the evidence. If Susan and Dennis made mirror Wills but Susan signed Dennis’ by mistake and vice versa then this could be rectified to ensure the validity of the deceased’s testamentary wishes.

Susan’s parting comments at the end of episode three – Susan “ will give the children everything”.

This will have no legal effect unless and until it is contained in a signed settlement agreement or a deed of variation.

If anything happens to Susan now (enter sinister music – and noting that someone did show up at her door at the end of episode three) then Dennis’ Estate will remain in Susan’s Estate, and it will be for her Personal Representatives to deal with. It is unknown whether Susan has any children from her first marriage or who the beneficiaries are in her Estate, so we need to wait for episode four to see how this ends up, for the children and Susan and/or her Estate.

Conclusion

At a time when family members should be mourning the loss of their loved one, they are caught up in the stresses and strains of potential litigation.

Litigation can be costly and even if you believe that you have a potential claim you should take specialist legal advice from the outset. When making a Will you can explore ways of benefitting a spouse for lifetime and delay the inheritance to your children. This may mitigate a claim being brought against an Estate but there is always the risk of a potential claim against an Estate.

This article was written by Sharon Bell, Legal Director. Sharon is based in the South East and works from our Sevenoaks office. For any enquiries, please contact Sharon or another member of our team on 01473 406386 or at disputeawill@birketts.co.uk.