contesting a will

A Recent Case Study

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss an example of a recent case which they successfully settled under which their client was claiming a Will was invalid because the testator lacked legal testamentary capacity.

A snapshot of a recent Will dispute or Will contest claim which we successfully resolved

In brief, we recently (and successfully) concluded a claim against the legal validity of a Will. Of interest to the reader are likely to be the elements which encouraged us the claim had some merit (and which encouraged us to take it on under a no win no fee arrangement). They were as follows:

  • An elderly testator!
  • A clear diagnosis of dementia prior to making the disputed Will
  • No Solicitor involvement in the formation of the Will
  • No pronouncement by a doctor at the time the Will was made that he/she had sufficient capacity to do so
  • A previous Will under which our client inherited the bulk of the estate

There were other issues which we cannot divulge, but which excited our suspicion and in our view would have excited the suspicion of the court.

Why is it important that the Court might find the Will writing circumstances “suspicious”

Put simply, if you are able to raise enough suspicion, then the burden of proof switches to the person or persons who are maintaining the Will (which was made when the testator had dementia) is valid – in effect, the testator had sufficient mental capacity notwithstanding his/her dementia at the time the Will was made.

This is hugely significant. In our case, as mentioned above, there had been no attempt to obtain confirmation from a treating doctor (usually the deceased’s GP) that he/she had legal testamentary capacity when the Will was being made. It is almost the same as trying to prove a negative (which is very difficult to do!). So more often than not, it will result in a finding against the legal validity of the Will.

It is also worth considering Mr Justice Briggs commentary on this issue in Key v Key 2010 EWHC 408 (Ch):

97. The burden of proof in relation to testamentary capacity is subject to the following rules:

i) 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.
ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.
iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.

See Generally Ledger v. Wootton [2007] EWHC 2599 (Ch) per HHJ Norris QC at paragraph 5

98. Finally, the issue as to testamentary capacity is, from first to last, for the decision of the court. It is not to be delegated to experts, however eminent, albeit that their knowledge, skill and experience may be an invaluable tool in the analysis, affording insights into the workings of the mind otherwise entirely beyond the grasp of laymen, including for that purpose, lawyers and in particular judges. In the present case, both Dr Hughes (in his oral evidence) and Professor Jacoby (in his report) left me in
no doubt that they both understood this limitation upon their role. Although they were both forthcoming in expressing their opinions, neither of them made any attempt to usurp the proper function of the court in that respect. Their contribution was of great assistance.

99. In the present case, there was due execution of the 2006 Will and it was, by common consent, eminently rational. Indeed, a powerful factor in favour the defendants’ case generally was its fairness, to the mind of anyone who regards equal treatment between children as fair treatment. Accordingly, the evidential burden of proof in relation to testamentary capacity was, initially, transferred to the claimants as objectors.

100. I am nonetheless satisfied that a sufficient doubt as to Mr Key’s testamentary capacity was raised by the claimants to transfer the burden in relation to it back to the defendants as propounders of the 2006 Will. Mr Key was both aged and, in psychiatric terms, infirm. He had just suffered the very recent and unexpected loss of his wife after 65 years of marriage, upon whom he was wholly dependent for his domestic care. The 2006 Will represented a radical departure from his last previously expressed testamentary intentions, in the 2001 Will, and it did so in favour of the two persons who had for the whole of the short period from his wife’s death until the Will was made, shared responsibility for his daily care, and one of whom had telephoned Mr Cadge to attend on 4th December to take instructions for the Will.

Does this not mean you will win outright at trial?

Not quite. There is no such thing as a guaranteed “win” in cases of this nature where really at best, most Solicitors will give a percentage chance of succeeding in the region of 65%. There are also other factors to consider to include:
• A timescale of roughly 2 to 3 years to the end of a trial (following the issue of the claim)
• The impact on you personally (stress)
• Costs – even cases which are insured against losing may not have complete insurance protection
• The availability and willingness of Counsel (a senior Chancery Barrister) to work under a no win no fee arrangement

The less willing or able you are to go to court the less you are likely to receive if you try and settle the case amicably, if there is any hint of this to your opponent. Another way of looking at it “commercially” is that there is a price to be paid for certainty. How much that should be is really up to you and your opponent. It can’t be assessed scientifically, but only on the day and whilst you are negotiating.

If you consider any of these facts and matters 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.