Our will dispute expert looks at a holographic will and what it means


Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss whether a mistake by a testator invalidates a Will

What do we mean by “mistake”

Here we are discussing a mistaken belief by a person making a Will which may have affected who was to benefit from his or her estate. To be clear, we are not considering a mistake affecting the legal formalities necessary to make the Will valid – as provided by section 9 of the Wills Act 1837. We considered this in a previous blog (refer to ). So we are assuming the person making the Will managed to sign it in front of two witnesses who also signed it.

What we are considering are scenarios that often come up in enquiries to us whereby the person making the Will might have made an error in relation to some key fact which appears then to be used as a reason for disinheriting someone who ought otherwise to be considered as a potential beneficiary. This does very often lead to enquiries over whether this means the Will can be contested or challenged. One example may be where the person making the Will appears to mistakenly believe he/she is owed a considerable sum of money or has otherwise already given the person who now contests the Will a large part of his/her estate. Another might be a suggestion that the person who now brings the Will dispute but who would normally have expected to be a beneficiary has stolen from the person making the Will. In fact allegations of theft are often also associated with claims of undue influence and sequestration (where the person making the Will is isolated from potential beneficiaries by a person seeking to influence their decision-making in relation to their estate) and also failing mental and physical health.

Can a mistake invalidate a Will?

This issue was considered by HHJ Matthews in Ball v Ball 2017 EWHC 1750 (Ch) (refer to ). The facts in Ball v Ball were (in brief!) that the three Claimants alleged they had been sexually abused by the testator’s husband (their father). They appeared to believe that when their mother came to make her Will, she mistakenly believed that he was innocent whereas he had been successfully prosecuted in relation to two of the three Claimants, apparently accepting his guilt. Here is the relevant quote on this from HHJ Matthews:

The question arises whether, when the testatrix made her will, she was labouring under any significant misapprehension or mistake. In particular, did she believe in her husband’s innocence when in fact he was guilty? There are a number of possible scenarios, because each of the two halves of that question has a number of possibilities. As to the first half, she may have thought he was entirely innocent, innocent in part and guilty in part, or entirely guilty. As to the second half, he may in fact have been entirely innocent, innocent in part and guilty in part, or entirely guilty. To complicate matters, the testatrix might have thought that, whether or not the allegations were true, whether in whole or in part, they were exaggerated by the complainants.

A key finding of fact was made against the Claimants which was that at the time she made her Will, she knew her husband had been guilty (of the offences of sexually abusing her children). Again, the quote from HHJ Matthews follows:

On the evidence I am satisfied that at the time of making her will she was not labouring under any significant mistake at all as to the guilt of her husband.

HHJ Matthews concluded that a mistake on its own will not invalidate a Will in a will dispute or will contest claim unless the mistake was a facet of (for example) the testator’s capacity issues. A Will then can be perfectly sound where (to refer to my examples above), the testator mistakenly believed he/she was owed money, had already given a person who might have been a beneficiary a considerable sum or where he/she erroneously believed that person had stolen from him/her. Here are HHJ Matthews findings:

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 (compare the case of Walters v Smee, where the judge discusses Boughton v Knight, at [36]-[37] above). But a mere mistake without more is not enough. In the present case, I am quite satisfied that, even if the testatrix had been acting in the mistaken belief that her husband was innocent of the charges against him, when in fact he was guilty, that would not be enough by itself to show that either she was suffering from an insane delusion, or that she did not have sufficient memory for the purposes of making a will. In the event, of course, I have in fact found that she was not suffering from such a mistake at that time. Strictly, therefore, the point does not arise.

So when is the “mistake” relevant?

Quite simply a mistake is only relevant in a Will dispute or Will contest claim where, as mentioned, it is associated with the loss of mental capacity. In other words, where it provides evidence that established capacity issues (invariably associated with Alzheimer’s or dementia) must have influenced his/her decision-making in relation to a disputed or contested Will.

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.