Challenging a will: what are the grounds for contesting a parent's will that you consider to be unfair?

Catriona Attride: Good. So today, we're going to talk about that perennial problem of a mum's will not being fair, from the point of view of usually a child. And talking about whether or not there is a way to challenge that. And what the grounds are for challenging a will, I suppose. And you're going to take us through that, Gavin? 

Gavin Faber: Yeah, absolutely.

Catriona Attride: Okay, so do you want to give us some examples of why a child might feel like their mum's will isn't fair? 

Gavin Faber: Well, I think it's a very common issue, particularly in this day and age. A lot of people are reliant on an inheritance from a parent. And they can get into real financial difficulties when they don't receive what they're expecting. It can also be deeply distressing when you find, for example, that your parents have left everything to friends or neighbours, or indeed even your own brothers and sisters, and not treated you in the same way. It can feel incredibly unfair, as well as financially disastrous as you were expecting those funds in due course. It's also a time where you'll be suffering a loss of a very close family member and grieving, and it just adds to the impact.

Catriona Attride:  Yeah, and I think increasingly, people are seeing their inheritance as their pension for the future, which, query whether that is right or wrong with this level of expectation. Because I often say to clients, an inheritance is a privilege, not a right. And I think that is represented in our law, isn't it? Because English law doesn't have forced heirship rules. Can you explain a little bit about what forced heirship rules are?

Gavin Faber: Yes, absolutely. In many countries around the world, there are rules that are actually set out in law that dictate how someone's estate, the assets and liabilities they leave when they die, how they're directed. So often, they will say that a spouse or a child should get a certain share or certain items from that estate. But in this country, that there is no such rule. We often refer to it as freedom of testamentary expression, which basically means you can do what you want. The one case that always sticks in my mind, and I use as an example, is that someone left substantial amounts of money to “the man who sharpens my knives”. And there was a lot of fun and games in trying to identify who that particular person was. But it did highlight that you can leave your estate and mum can leave her estate to, frankly, anyone.

That can often lead to, as I said earlier, a real sense of unfairness. But unfortunately, the basic position is that that's not necessarily a relevant factor or consideration. It's not a question of what's fair. And often I come across lots of cases where motives can be really quite nasty. There are lots of cases where the courts talk about the person who died being capricious and frivolous or even bad. And they really can do some pretty horrific things to the family members, in terms of cutting them out, and not only cutting them out of the will but also sometimes in statements, wills are often accompanied by letters or statements which set out what that person thought. And it can be a tremendous shock. I could think of cases where people have disclosed children that no one knew about, affairs, all sorts of family secrets. And this sort of adds to the whole sense of unfairness.

The problem with the sort of options, and there are only limited options available to you, if you have got concerns, that those concerns have to be more than suspicions. It's just not enough to think that something untoward has gone on, you've got to ultimately be able to evidence it.

Catriona Attride: Yeah, it's not enough just that you don't like what they've done. I obviously draft wills, and I've had clients who, and have had to sort of talk them out of doing this, because perhaps they've got one of their children who they don't want to inherit, but they want to leave them a token, one pound gift, almost to rub salt in the wounds. Or you've got people who, and we see this quite a lot actually, where one child has done very well, and the other children, perhaps not so much. And then they don't treat them equally. And actually, that's when it becomes not about money, that becomes about fairness between siblings. Because the child who's done well can often feel as though they're being penalised for doing well, because of the life choices they've made.

And that, again, can lead to some quite complicated feelings that come about after losing a parent, like you say, when actually, it's a time when you're really grieving. So in terms of when you can challenge, well, as you said, it's, incredibly limited, and particularly when you've got adult children. Do you want to do a bit of a summary in terms of where you might have a chance?

Gavin Faber: Yeah, absolutely. I think the first thing to look at is, was the will properly executed? By that, I mean that there are certain formalities that are required to make a will. For example, generally, they have to be in writing. Say there are occasions which allow oral wills, but those are very, very limited and rare. It has to be signed. And that can be sometimes no more than a thumbprint, which has certainly happened in the case I was involved with. And there was a big argument as to whether that was sufficient and whether it was intended to be a will. And another common issue that crops up is witnesses, there needs to be to witnesses. But they mustn't be beneficiaries or spouses of beneficiaries. It won't invalidate the will, but it will stop those beneficiaries receiving what they would have done from the will.

Obviously, in current circumstances and the situation where we've been suffering, all the issues from the COVID epidemic and looking at lockdowns, it's become much more difficult to perhaps get people in a room to prepare a will. So there's been an increase in remote witnessing of wills. And indeed, the law changed fairly recently, to allow wills to be witnessed through effectively video link. And there are quite a few hurdles to get over. And so we're starting to see some of those wills coming through now, where there are concerns particularly over abuse of the testator because you're not quite sure who's in the background and what's happening. But I think fundamentally, that's almost a starting point, was the will properly prepared and executed? And it doesn't need to be prepared by lawyers. And indeed, a lot of the wills that come across my desk are handwritten, they may not even be using a will pack or any online precedent. They could just be something that someone's put together, but as long as they comply with the formalities. 

And frankly, it's quite a changing area. In other countries around the world, there have been all sorts of wills that have been held to be valid, that aren't necessarily in writing. Obviously, they're subject to different rules. But even where the rules are quite similar, there's been notes on a mobile phone that have been held to be valid. I think it's very much a changing area in the law. And it's quite a tricky one. I think that you have to be careful because there's nothing worse than drafting it and thinking you've got all your affairs in order. And then find that at some point in the future, it's challenged. And a number of people, including your children, may end up in a big fight in court, which is obviously very stressful and very expensive.

Catriona Attride: Yeah, absolutely. I had a case quite a few years ago where a lady was very ill, and she'd had her will to sign. I think the key point to note here is it is two witnesses, but two witnesses who have to be with you at the time you sign, they have to see you sign, they have to be in the same room. What transpired was that although one of the children had assured everybody that the witnesses had all been there at the same time, they hadn't. One of them had been in the house next door, and the will had been taken to them, and then they signed it there. So the testator wasn't there. And that obviously caused huge problems, it was a family with a lot of issues anyway.

And it's stressing to people, the importance of making sure that they get that bit right. And like you say, with the introduction of online signing, I think what worries me personally, is what you've said. Who is in the background? Who's off-camera that you can't see? Is the will that's being signed in front and the one that you end up signing as the witness, I think it's a slightly concerning area. So, I mean, once we've got the will signed properly, the next challenge I suppose that we should think about is capacity, and whether or not the person actually was able to sign a legal document, disposing of their assets.

Gavin Faber: Yeah. I would say that's probably the most common form of challenge to a will. Interestingly, the rules about capacity and the test goes back to a very old case, which is known as Banks and Goodfellow. And, indeed, in the last week or two, there's a case that's been heard on appeal, where the courts held that it was still good law. So in essence, what you have to show under the test is that the person who's making the will, so mum, understood that she was making a will. She understood the extent of her property. And that's not that she has to know every last pound, every account and the value of her house and perhaps some other properties. It's just have a general understanding of what she has, what wealth she has, and what assets she has. And she needs to be able to appreciate the people that she ought to think about. 

Obviously, within that group, you would almost always consider children to be a big part of it. And it's perfectly proper, as we've said already, that she may well think about a son or daughter and decide that she doesn't want to give them something. Or, as you've said, equality, just because she decides that one of her children has got sufficient of their own resources, wouldn't mean that that would necessarily fail the test. If she'd forgotten about that person and hadn't even considered them, then that might create an issue. And then there's almost a capsule, which basically says that their mind shouldn't be affected by some form of disorder or delusions. Which basically led her to making the will that she did.

And that's, I suppose, probably the limb of the test that we look at most frequently. Is there something affecting their mindset, affecting their mental ability, that means that they can't properly consider what they're doing with their estate? And these are all very tricky, because one of the earliest issues you consider where someone's approached you to say that, mum's made a will and I don't think she was capable of doing it, is, is the will rational? Because the test and the burden of having to prove your case, it shifts depending on whether the court finds that the will was rational. So this is a little bit tricky and it's very difficult to predict, because of course, when you're first seen by someone in this scenario, we're probably being seen by the children. We're hearing their side of the story.

In one particular case, it was early on in my career, and it was the children who came and saw me. And they were very concerned because in that case, it was the father, had left the bulk of his wealth to the cleaner. And it been an elderly cleaner that had gone in to help him for some years. And it seemed completely out of context with everything they understood. On that basis, you'd look at it, whether or not it was rational. It didn't seem to be the case. But as things progressed and the evidence came out, it became clear that actually, although they had portrayed it as a sort of cleaner work relationship, they'd actually been in a full-blown romantic relationship for some years. And it was completely rational, once we understood that. 

The significance of that is that the starting point with bringing one of these claims is that the person looking to prove the will, so that's normally the executors, they have to establish capacity. But there's an assumption that capacity exists if it looks right, if it's been properly executed, and as I say, appears rational. But if there's a real doubt about capacity, so it might be that mum suffering from some significant dementia, for example, then the burden shifts on to the person who is then again, back to the executors. So you've got the situation where your starting position, it's for the executors to prove it. But because of presumption, it passes to the person who's objecting to the will. But if they're then able to raise a real doubt about capacity, it goes back to the person seeking to prove that will, to have that will enforced.

Catriona Attride: Yeah, and a lot of it is to do with perception, isn't it? Because people will have their view on what's rational and what isn't. And actually, just because you're making an eccentric decision, doesn't mean it's wrong. Because ultimately, as long as you've got regard and you've got an understanding of what the extent of your assets are, you've considered who you've got responsibility obligation to, if you like. And then you've made your decision based on that. Again, this comes back to the testamentary freedom point, it isn't just wrong because, and even under Banks and Goodfellow, unless there is some sort of capacity type issue, where you're not capable of making an informed decision.

Gavin Faber: Yeah. I think the problem with it is that it's such a fine line. And often, the decision comes down to who had the burden to prove one way or the other. And the difficulty with predicting how these cases will finish, and who will succeed and who will fail, can often rest with that judgment right at the end. Where the judge says, well, I've found that it was rational, or I've found that it was irrational. And that might well be the element that swings it one way or the other. And indeed, with incapacity, I mean, what is incapacity? Just because someone is suffering from a mental illness, and obviously, a very common one these days, particularly with elderly people is dementia, that doesn't necessarily mean that they didn't have the capacity to make a will. Obviously, if they're suffering greatly(and it can sometimes be very obvious when you see the medical records that they didn't have capacity). But in most cases, it's not clear at all. 

Catriona Attride: Well, people can have lucid intervals as well, can't they? 

Gavin Faber: They can.

Catriona Attride: So it's not uncommon to find that people have good days and bad days. And sometimes it can be even down to where you've taken instruction. So with clients who are perhaps older and suffering with early-onset dementia, for example, they are much better, perhaps being seen in their home. Because they're in familiar surroundings. Whereas if you take them out the home and bring them into an office, all of that disorientation from the trip in, the travelling, the getting there, meeting someone they don't know. And that then can have a significant impact. So I think how the instructions have been taken are important. And I think it then comes down to, again, the person and obviously, you're the one picking up the pieces afterwards. But there's a duty on the people preparing the wills, to make sure that they are doing everything they can, to make sure that capacity isn't questioned. And so we should be asking for the doctor's confirmation of capacity, for example. And there's the golden rule as well, isn't there? Do you want to explain a little bit about that because we see that being missed a lot?

Gavin Faber: Yeah. In essence, where a will draftsman is dealing with someone who's old or infirm, who might be in a hospital, for example, they ought to have the will witnessed and approved by a medical practitioner who's satisfied as to capacity. And they then record details of the examination and the fact that they found that there was capacity. And it's incredible how often you've got people that are seriously ill, and it's not been addressed at all. I must admit that when I'm advising people on trying to mitigate the risk of a will challenge when they're making a will, I would almost always look to get a capacity assessment, if there are any remote doubts, even when I'm entirely satisfied they've got capacity. Just to cover that off, because it's very difficult to challenge it afterwards. 

Because the courts, unsurprisingly, put a great deal of emphasis on reports that are done whilst the person's alive. So if mum's alive and seen by a medical practitioner, then their evidence is going to be very important. As opposed to getting an expert after mum's died, who's basically trying to form a view based on medical records and statements from all the people involved.

Catriona Attride: Yeah, I mean, it's belts and braces, isn't it? Or as I like to call it, the prevention rather than cure method. Let's do it all properly now and make sure that we've covered everything. And we tend to say to any client who is over 80, that we should be getting some sort of confirmation from a doctor. Unless they're doing... I mean, if they're just leaving everything to their family, fine, that's not controversial. But the minute anybody's doing something different... And in fact, I've got a long-standing client, and she called me before Christmas, actually, and she was upset with her son. He's her only son, her daughter died a number of years ago. And he's the sole beneficiary of her wealth. But she rang me and suddenly said, "I want to rewrite my will. And I want to cut him and his child out. And I want to leave it all to my very good friend, who is an accountant."

Immediately, my alarm bells come up. And we talked about why that might be, and I suggested that she maybe waits and see what happened at Christmas, and then we would revisit it. But I explained to her that if she was going to do that, we would have to get confirmation from her doctor and explain to her why, and she understood. Inevitably, when I called her a couple of weeks later, it was all better and everything was okay. But there could have been a situation where she had just gone to someone and said, I want to rewrite my will and write my son out of it, and it was done. And then she might have forgotten to go back and change it again. So it's a really difficult area. And one of the things that sprung up for me, when she mentioned this very good friend, was, well hang on, have we got a little bit of influence going on here? And you must see allegations of undue influence crop up.

Gavin Faber: Yeah. It's very interesting, what you've said. The one final point that I'd make on the reports and the medical experts is, I see a lot of situations where people have gone and got a report, for example, from the GP. But it doesn't adequately deal with the test. And often, the person who's giving that report, doesn't understand what they're required to actually assess. And it can actually cause more problems than it solves. And conversely, it's sometimes known as the tactless rule. Because you're having a conversation with a client, like you've described Cat, that you've worked with for years, suggesting that they might not have all their faculties. And so you're having to do it. But it is, it's talking about it as an insurance point of view. And certainly, a case where, I was acting in quite a nasty dispute for a client who, it was in relation to her late husband's estate, and it was a big fight within the family. Unsurprisingly, as a result, she wanted to change her will subsequently.

And I had no issue at all, that she didn't have capacity. But we went and got that report done by a properly recognized capacity assessor. And it was purely an insurance product, to just get rid of that risk. But you're right, every single one of us is influenced every single day of our lives. And particularly by family members and friends. We're always getting recommended or suggested we should do something, that we might not necessarily have thought of. But that doesn't necessarily mean that it's undue and would prevent a will from being held to be valid. So with undue influence, and it does have to be undue, it's actually a very common allegation. I said earlier that capacity's probably the most common challenge that we bring, and that's true. But I would say undue influence is probably the most common allegation that's first made to us, when the clients come to see us.

More often than not, it's not that mum didn't have the capacity. It's, my brother or sister, the neighbour, the friend, whoever it might be, who has forced her to do this will. This isn't her. And we obviously investigate that, but it is notoriously difficult. Because what we have to show is that there was actual coercion. And we have to positively prove that. So it's not just physical violence, mum turned up one day and mum had a black eye. More often than not, it's not that sort of approach at all. It's something that's done over time, it's bullying, it's gaining control.

Catriona Attride: Well, it's manipulation, isn't it?

Gavin Faber: Manipulation. And sometimes in a very drip, drip basis.

Absolutely. And where I've seen it, and not necessarily them being successful, but you can sort of spot it a mile off, and I am a terrible cynic, as anyone will tell you, because I've done this job for way too long. But you see, often, someone being befriended, because they're older. And the person makes themselves available and kind of earns it, they see it as they're earning it. So the freely overly friendly neighbour who will do the shopping, or come in and help you. Because your kids live some distance away. And over time, it's that manipulation, that kind of feeding into them, well, look how much I'm doing for you. And I'm struggling financially.

Catriona Attride: Quite often, I think these sorts of cases also can have an element of financial abuse during their lifetime in them, as well. And I can think of a particular case with a very disabled person who was being financially abused by a person and had no idea. Who was literally living with no money, thinking that they had nothing. It turned out that it was because the person who apparently cared about them so much, was going on fancy holidays and doing all sorts with her money. And then also ostracized from her family, and then persuaded her to do her will in a certain way. Actually, that was a case where it got unravelled beforehand because the person got caught before the disabled person died. But it's very complicated. Trying to prove it is extremely difficult because there's not a paper trail.

Gavin Faber: Yeah. And unfortunately, the best witness is normally dead. 

Catriona Attride: Yeah.

Gavin Faber: So you're having to try and piece it together with evidence and the information from witnesses and all sorts of other sources, and some documentation. And it is incredibly difficult. And it's such a fine line, you've talked about the neighbour, and I've come across that an awful lot. Where friends or carers, and they're genuinely helping, and lo and behold, they suddenly inherit everything. And it becomes very, very tricky to try and sort through it. And certainly, I've met some lawyers who specialize in this area, who will not ever pursue a claim of undue influence as a matter of policy. Because they just don't see the circumstances where you'll succeed. Now, I don't share that view, and I think there are circumstances. But what you're having to show in effect, is it's the only explanation, that this coercion was the only explanation for it. And there isn't any other explanation. 

And if there is any other explanation, such as that person was becoming very helpful and spending a lot of time with them, then it is very difficult to prove. But it is a concern. And I think particularly, in the current situation where people's access, and certainly, I've had some cases very recently, where elderly people have effectively been cut off. And of course, a lot of that's down to the fact that their family can't see them.

Catriona Attride: Yeah, absolutely. And actually, with the rules as they've been, and they're changing all the time, but you've got a situation where they're only allowed to see one family member. So one child is kind of put in that position. And in many cases, that's fine. But there will be cases where that's just further ostracizing from the other children, for example. Because, I think, as much as the neighbour can be an issue with the undue influence, so can a child. The child who's feeling the burden of looking after the parent, while the other children live elsewhere. Or quite often the daughter feels that she's left with it because her brother's off doing his own life. You see all those stories, don't you?

I think the other thing that comes in with undue influence is the area of knowledge and approval, isn't it? Because you've got to know and understand and approve of the content of your will when you sign it. And that's another area for challenge.

Gavin Faber: Yeah, it's often run alongside capacity. And in essence, does the will truly represent their intentions? And it's all about exploring were there any suspicious circumstances? And it might be that mum's got some disability, she's deaf, dumb, blind, that could be something that would raise suspicions. The person who drafted the will benefits, and it's surprising how often that happens. I can think of a case at the moment, where there's an assertion that mum went and searched on the internet and found some draft wills, and then prepared it herself at a time where that just wasn't conceivable. Through various issues, both physical and mental. It's maybe a situation where English isn't mum's first language. And there's a complicated will being prepared that most people would perhaps, struggle to understand, let alone someone who's trying to do it in a second or third language.

And again, I suppose a very common circumstance is where mum makes clear to various people, that her will is in a particular way. And then it transpires that it's very different. And that her understanding of what the will did, wasn't correct. And that can be quite useful information. And obviously, the more suspicious the circumstances, the more likely the court will find that they didn't know and approve the contents of the will. 

Catriona Attride: And then the last real one that I think we just need to cover off, is forgery. I have had one actually, which was proved to be a forgery. And I know recently in the press there's been a case of a couple who were looking after, I say looking after in inverted commas, a gentleman who they were neglecting, but also allegedly forged his will, leaving everything to them. Have you come across much forgery?

Gavin Faber: Yeah, I've got a couple at the moment actually, where there are allegations of forgery. And they're difficult as well because it's very unlikely you're going to get an expert who can say categorically, it's a forgery. They normally give you a range of how likely it is. And the courts will very much look at what the witnesses say, particularly the witnesses to the will. But you do get them. I always remember a case where they made a will, and it transpired when the expert looked at the paper that the will was on, that the will was dated, I think in 2014. And the paper wasn't actually produced until 2016. So that was quite an interesting one. Very difficult to explain away. So you do get that situation. It's not just a question of the signature often, it is the paper. And experts can look at it and they can see whether it's been written on something else. 

Sometimes the will may have been overlaid on something, and they can pick all this information out. It's quite an interesting area. But you need to have very strong evidence to persuade a court that it is a forgery, where you've got two witnesses who appear independent, who say no, that person did sign the will in front of us.

Catriona Attride: Yeah, of course. And conscious that this podcast is about wills being unfair, so we need to touch on claims that can be made against the estate. But we will be covering that in more detail in another podcast. But we do have the Inheritance Provision and Family Dependents Act 1975, which is there for where the inadequate provision has been made for somebody who was dependent on the deceased, and that can extend to spouses, partners, et cetera. But it can also extend to children who feel like they've been treated unfairly. But it's right to say that the courts are not big fans of adult beneficiaries, who are living their own life, making a claim under that Act, unless they can show dependency.

Gavin Faber: Yeah, I think, certainly, when someone approaches to look at issues with a will, you will always consider the Act. And whether or not someone can bring a claim. And the Act actually sets out, precisely, who can bring a claim. And children tick that box. So whether adults or minors under 18, they have the standing to bring a claim, is how we phrase it. But yes, they can pursue it. But it's not simply a question of saying, well, I haven't got anything or I haven't got very much. They would have to show more than that. I think as a child, you tend to have a stronger claim, particularly where you've got a relationship with a mother, in this case, who is, if she's supporting you. But even in cases, there was a very recent case, where the father was estranged and didn't financially support the children, but the court still felt that they should have provision from his estate. Rather than it all going to the new family.

And I think this is a very common claim. But as adult children, you're really looking at whether you've got, as you said, some form of dependency or need. A case that I acted on not so long ago, where the daughter had a mental illness, and she was never capable of working. So she was always supported, in that case, by her father. And she had a very strong claim. And a lot of the arguments weren't so much on her ability to bring the claim, but also on exactly what her needs would be. Because you're trying to look forward into the future and come up with a sum of money and some financial support that will, in theory, take her to her very last breath. And the idea is that as she takes her last breath, the last penny leaves her account. So it's quite a complicated calculation. 

But I think these are probably more common than the will challenge themselves. And of course, even if there isn't a will, and we all know that there's an awful lot of people out there that, despite the fact statistically 98% of people will die at some point, they don't make a will. And so the rules of intestacy, the rules where a will doesn't exist, a valid will doesn't exist, set out who gets what. And sometimes children might need more than they would get under that, in those intestacy rules.

Catriona Attride: Yeah, I mean, some of the most frustrating cases I've been approached about are adult children, where there's been a second marriage. And frankly, the pair, say dad and step-mum, just weren't advised on the consequences of structuring their wills, whereby they leave everything to the spouse and rely on the spouse to let it go to the children on the second death. Because I've had cases where dad's died, all the money's passed to step-mum. And then step-mum's sort of been marched down to the solicitor's by her own children, and rewritten the will, writing out the step-children. And they're adults, they're not dependent and they don't have any claim. And there are ways of structuring wills, which we talk about in other podcasts, to make sure that the surviving partner, in that case, can be looked after. And say that they are adequately provided for. But that you ring-fence the share of your capital for your children, from your first marriage.

And they can do the same so that you're not dependent on the survivor doing the right thing. And sometimes, the writing out of those children can be inadvertent, because it can be that they've rewritten their will and just not thought about the fact or they've remarried, and because the Act is limited in who it can cater for, I do think there's a big piece here around making sure that you get proper advice in the first place, and make sure that you're protecting who you want to protect then so that it represents your wishes.

Gavin Faber: Yeah, absolutely. I think it's one of the most frustrating scenarios that I come across, is exactly that. Where very often, it might be a second, third or fourth marriage and they go into it with their own wealth, independent wealth. But for whatever reason, they do very simple wills to each other on the basis that their partner or spouse will do the right thing. 

Catriona Attride: Yeah, doing the right thing, that perennial phrase.

Gavin Faber: Yeah, they'll do what's fair to bring it full circle.

Catriona Attride: Yeah, the problem is with fairness, is it's so subjective, isn't it? And what's fair to one person. It's that whole thing of perception and reality. My perception is my reality, and I think that's really difficult for families to understand. 

Well, Gavin, thank you so much for your time today. And thank you for talking to us about this subject. Hopefully, we've given our listeners a bit more information and food for thought. And some of these subjects will be covered in more detail in other episodes. So thank you very much for your time today.

Gavin Faber: No, thank you, Cat.

Catriona Attride: Thank you for listening to Talking Family and Wealth.