In a recent case, a woman has successfully challenged her mother’s Will which disinherited her because the mother believed she was a ‘compulsive spendthrift’ and instead left her whole estate to her son.
Jean Clitheroe, passed away in September 2017 at the age of 76 leaving an estate worth £325,000. Prior to her death, she had made Wills in 2010 and 2013. In both of these instances, she provided her solicitors with a letter of her wishes, stating that she had deliberately omitted her daughter, Susan Bond, from her Will because she was ‘a shopaholic and would just fritter it away’. In addition, a solicitor’s attendance note recorded Mrs Clitheroe as saying that Susan was a ‘spendthrift and will just spend her inheritance’.
Mrs Clitheroe’s son, John, was appointed as the executor and trustee in both the 2010 and 2013 Wills and he received the residuary estate after bequests of chattels and cash to grandchildren. Susan did not believe that she should have been left out of the Will and so when their mother passed away, she opposed John’s application for probate on the grounds of testamentary capacity.
Susan’s first argument was that the 2010 and 2013 Wills were invalid because her mother lacked capacity due to a complex grief reaction, followed by a continuing affective disorder characterised by depression and ‘insane delusions’ regarding Susan.
Susan further claimed that John had poisoned their mother’s mind resulting in additional delusions, thus she also challenged the 2013 Will on the grounds of fraudulent calumny. She, therefore, asked the court to pronounce that Jean Clitheroe died intestate which would mean that her mother’s estate would be instead divided equally between her two children.
During the case, there was substantial criticism of the execution of the 2010 and 2013 Wills, as there had been no attempt to take instructions from Mrs Clitheroe in person. In fact, John had been heavily involved in the execution of her Wills and knew of the contents of the Wills. It was found that her solicitor had witnessed the execution of the Will, however, had not followed the ‘golden rule’. This rule outlines, that when a solicitor has doubts about their client’s capacity then a medical opinion should be sought and the signing of the Will should be witnessed or approved by a medical practitioner.
The burden of proof regarding Mrs Clitheroe’s capacity lay with John, as he was propounding the Wills. He therefore, had to establish that his mother was not lacking capacity at the time of making her Will. The medical evidence throughout the case was divided. One side testified that there was no clear evidence that she lacked capacity at the time of making her Wills. However, the expert instructed by Susan testified that her mother was suffering from a disorder of the mind.
The court decided that John had not discharged the burden of proof needed, and consequently, it was presumed that Mrs Clitheroe did not have capacity at the time of making her Wills. On the matter of fraudulent calumny, the burden of proof lay with Susan and it was decided by the court that there was no direct evidence of John encouraging his mother’s beliefs about Susan.
It was accepted by the court that Mrs Clitheroe had suffered from ‘insane delusional beliefs’ at the time of making her Wills, so the judge ruled that neither of the 2010 or 2013 Wills could be admitted to probate. Therefore, the residuary estate was divided equally between Susan and John.
Challenging a Will
There is a general principle under English law that everyone has ‘freedom of testamentary capacity’. In other words, upon death, a person can leave their property, assets and other wealth to whoever they want. However, there are exceptions to the rule.
Grounds for challenging a Will include:
- Lack of testamentary capacity – For a person to make a valid Will they must be of sound mind.
If one or more of the following legal test applies then the Will may be invalid:
- Understand that they are making a Will and the effect of that Will.
- Know the nature and value of their estate.
- Understand the consequences of including and excluding certain people under their Will.
- Not be suffering from any ‘disorder of mind’ which may influence their views, “pervert their sense of right” or “poison their affections”.
- Lack of due execution – For a Will to be valid in England and Wales it must meet a number of strict requirements set out in section 9 Wills Act 1837.
Failure to do the following will make the Will invalid:
- Must be in writing.
- Person writing must have intended their signature to give effect to the Will.
- Two witnesses present at the same time (see our article on Wills and social distancing here).
- Two witnesses must sign in the presence of the person making the Will.
- Lack of knowledge and approval – A person must have knowledge of, and approve, the content of their Will i.e. they must know that they are signing a Will and approve what it says.
If the person making the Will is not aware of the content of their Will then it may be possible to contest the Will.
- Undue influence – For a Will to be valid, the person making it must be free from undue influence. Influence is “undue” where it goes beyond mere coercion.
Signs include:
- The person making the Will is vulnerable.
- No rational reason for changing the Will.
- Dependency on another person.
- Fraudulent and forged Wills – You may be able to contest a Will if you believe any part of it was subject to forgery or fraud was involved
- Rectification and construction claims – A Will can be rectified where it fails to carry out a person’s intentions either because of a clerical error or because of a failure on the part of the person preparing the Will to understand the instructions.
- The Inheritance (Provision for Family & Dependants) Act 1975 – This Act was introduced to help those who had been wrongly left out of a Will, those who had not been left as much as they need, or those who had not inherited as a result of intestacy.
How Blaser Mills Law can help
Our expert solicitors will carefully discuss your wishes with you and will carry out all appropriate measures to reduce the risk of your Will being challenged.
If you would like any further information on the contents of this article or on Wills, Trust and Probate in general, then please contact the Wills, Trusts and Probate team on 01494 781 362 or email Jonathan Gallop at jjg@blasermills.co.uk