Can a Will Be Overturned Because of a Mistake

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider whether a Will can be overturned, challenged or found to be legally invalid because of a mistake

On what basis is a Will normally valid?

You can find a summary of what it is which makes a Will legally valid on the following page:

Will Validity – Will Claim Solicitors

Essentially, one is looking for the Will to have been signed by the testator (the person who makes the Will) in front of two witnesses who also sign. By this means, the Will execution complies with s. 9 of the Wills Act 1837. However, the testator must also have sufficient legal testamentary capacity at the time the Will is made and know and approve of the contents. These aspects are described in more detail in a recent decision called Leonard v Leonard reported in our earlier blog:

Leonard v Leonard: A Brilliant Analysis of Testamentary Capacity and Knowledge & Approval | Will Claim Solicitors

Can a significant misapprehension or mistake on a critical matter which could conceivably affect the testator’s testamentary decision-making render the Will invalid?

This was considered in some detail by HHJ Paul Matthews in Ball and others v Ball and others [2017] EWHC 1750 (Ch). The critical matter about which the deceased (or testator) may have been mistaken about was her husband’s innocence in relation to abuse allegations concerning his (their) children. The Claimants alleged that the deceased’s mental state must have been impaired because she mistakenly believed in her husband’s innocence – where the circumstances revealed that he was clearly guilty.

The overview was that it was nevertheless accepted that the deceased wasn’t suffering from any physical or mental illness which would have been sufficient to deprive her of legal testamentary capacity.

HHJ Matthews found in fact that at the time of making her Will the deceased was not labouring under any significant mistake at all as to the guilt of her husband. In essence then, the Claimants could not accept she could have made a Will favouring her husband knowing (as she did) that he was guilty of the most serious abuse and yet retain capacity to make a legally valid Will. Unfortunately, what this case reveals is that even in the context of such gross misconduct, a Will can still be legally enforceable. A legally valid Will can be made even where there are bad reasons associated with the decision-making process which was plainly the case in Ball.

At paragraph 41 of his Judgment, HHJ Matthews explains:

“But this does not mean that the law requires a perfectly balanced mind. Nor does it mean that a testator who is capricious or spiteful or mean cannot make a Will. In principle, and subject only to the jurisdiction conferred upon the Court by the 1975 Act, a testator with testamentary capacity and free from undue influence is entitled to leave his property to whomsoever he wishes”

Can a Will be legally valid where the testator is suffering from a mistake which is so serious it ought to reveal she cannot have sufficient mental capacity to make a Will?

Again, in Ball this was considered. The Claimants relied on a number of decisions to prove their point; namely Re Beaney [1978] 2 All ER 595, Walters v Smee [2008] EWHC 2029 (Ch) and Key v Key [2010] EWHC 408 (Ch).

These were however distinguished by HHJ Matthews. At paragraph 44 he noted:

“It is clear from these passages that the Judge in that case [sic – Walters v Smee] is looking first and foremost at the question of lack of capacity, and not of the question of misapprehension or mistake. As he puts it, the misapprehensions were the result of dementia, and the dementia took away capacity…..In my Judgment this decision does not assist the claimants in a case such as the present, where it is accepted that the testatrix was not suffering from any mental or physical illness which could have affected her testamentary capacity”

In essence then HHJ Matthews confirmed that a mistake without more (evidence of possible cognitive issues) was not enough. At paragraph 57 he confirms:

“In my Judgment, this case makes clear that mistake does not by itself operate to invalidate a Will. What it can do, however, is to provide a basis upon which to say in an appropriate case that the testator either is suffering from an insane delusion or does not possess a sufficiently sound memory for the purposes of making a Will…”

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

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