When someone passes away, their will is expected to reflect their true and final wishes – but sometimes, amongst the grief, something may not feel right. You may be concerned that the will is unfair, that it doesn’t properly provide for you, that it was made under circumstances that raise questions, or the relationship was more complex than can be represented on a document.
In situations like these, it may be possible to challenge the will. This blog will identify the two most common legal grounds for doing so, and what steps you can take if you believe something isn’t as it should be.
Lack of Capacity
One of the first things that a solicitor needs to identify when instructed to write someone’s will is whether they have sufficient mental capacity at the time of making it. This is commonly called being of “sound mind”. A person who is making a will is known as a Testator.
In legal terms, this simply means for a Will to be valid, the person making the will must have the mental capacity to understand what they are doing at that time. This includes the testator having a clear enough understanding of what they own, who their loved ones are, and what you want to happen when you die.
Being elderly, physically unwell or decadent on others does not always mean the testator will lack capacity. Capacity can come and go, sometimes as quickly as hour by hour. Therefore, a solicitor may sometimes feel it is appropriate to take extra steps to assess and record capacity carefully via a medical expert and/or witness evidence.
Undue Influence
Even if someone has full mental capacity, a will can still be invalid if the testator was manipulated, coerced or pressured into making it or leaving their estate in a particular way. This is known as undue influence.
This is the law’s way of recognising that the elderly or vulnerable can be pushed into making decisions that do not reflect their true wishes.
Undue influence goes much further that a friend expressing they hoped to be included or even a family member saying they would love the grandchildren to be remembered in the will. Undue influence means that the pressure the testator faced was so overwhelming it overpowered their free will and, in turn, they did not feel able to put in the will what they truly wanted. It reflects what someone else wanted.
What might undue influence look like?
If someone you love or are close to is being influences, it can be very subtle or very obvious. The signs may include:
- Isolation – Have they been cut off from other family members or friends? Does it feel like one person or section of the family have total control over them?
- Intimidation – are they being told that they will be abandoned, mistreated or abused unless the will is changed?
- Persistent Emotional Pressure – are they looking worn down or seeming quieter than usual? This may be due to someone trying to wear them down over time until they give in.
- Exploiting Dependency – is someone taking advantage of the fact that the person relies on them for care, money or companionship.
- Lies – Are lies being told about other family members in order to turn the testator against them?
Unlike trying to prove lack of capacity, which will normally be easier to prove due to a paper trail of medical records and professional opinions, undue influence can be harder to prove. This is because there is rarely a paper trail, as the pressure will take place in private, the person involved is often a trusted person – a carer, close relative or partner. This person’s actions can look like love on the outside and because of loyalty, fear or conditioning, the victim may deny it.
A good and experienced solicitor will be alert to warning signs, such as:
- someone else booking the appointment and trying to sit in during
- The testator seeming nervous, unsure, or looking at the person they are with for approval
- A will that differs dramatically from any pervious wills
- A will that benefits a main person whilst cutting out close family
- Pressure for the will to be completed quickly
- The testator being isolated from family and friends.
A good solicitor should always see the testator alone and take careful notes of any meetings.
If a claim is issued, the courts will carefully look at all of the surrounding circumstances. They will assess who had access to the testator, whether they were isolated, how the will may differ from any previous ones, and whether the person had my independent legal advice.
If a court finds that undue influence has taken place, the Will will be declared invalid. The estate would then pass as per an earlier valid will, or under the rules of intestacy (the rules that apply when someone dies without a valid will).
What is the difference between Lack of Capacity and Undue Influence?
The real difference lies in who bears the burden of proof. If the main issue is lack of capacity, the burden will be on the person defending the will. However, in undue influence cases, the burden of proof lies with the person making the allegation. This is what makes these cases notoriously difficult to prove.
A will is one of the most important documents we will ever complete during our lifetime. That is why it is so important for it to be a free and genuine expression of what your loved one wants. If you are concerned that a loved one was pressured into making or changing their will, it is importantly to seek legal advice as early as possible as these sensitive cases require careful investigation.
If you believe a will does not reflect your loved one’s true wishes, do not ignore those concerns. Taking advice early can protect your position and prevent matters from escalating. If something doesn’t feel right, speak to an experienced solicitor as soon as possible to discuss your options in confidence.
Whether you want to write or re-write a will or have a confidential discussion about the circumstances of a loved one’s will, Thomas and Thomas solicitors is here to assist no matter how sensitive the matter.
By Jessica Baber, Advanced Paralegal
