Disappointed Children Fail to Overturn Will
22nd June 2018Back to articles
When a will is made late in life which materially changes how an estate is to be distributed (especially when the new will favours one of a number of children), a dispute following the death is almost inevitable.
So it was when an 85-year-old woman made a new will which left her house to the youngest of her three children. The value of the house was approximately £350,000. It was effectively the only asset in her estate and an earlier will (made when she was 80) had divided her estate equally among her three children.
The second will was of the 'pre-printed' type and its validity was attacked by the siblings disadvantaged by it. They argued that it was not properly executed, that their mother lacked testamentary capacity, that she did not 'know and approve' the contents of the will (meaning she did not appreciate that the outcome would be an unequal division of her estate) and that it was procured as a result of undue influence on the part of her youngest child, with whom she had spent a considerable amount of time in the years leading up to her death.
The validity of the execution of the will was for the youngest child to prove. The witnesses to the will were able to confirm the circumstances under which it was signed. In addition, they confirmed that the woman had told them its main provision – that the youngest child would receive the house.
The evidence put before the court by witnesses who knew the woman led to the rejection of the claims regarding her lack of mental capacity and that she did not have knowledge and approval of the contents of the will.
The final claim, that the youngest son had used undue influence to procure the creation of the new will, was also unsupported by the evidence. The fact that the other two children owned houses, whereas the youngest did not, was a key point in understanding her motivation.
Andrew Eddy, Head of Private Client says "This is yet another case in which a court appearance and increased ill-feeling between family members could have been avoided had the testator instructed a solicitor to create the new will. A solicitor will make sure that a will is valid in its execution and, where a challenge is a possibility, that there is evidence of mental capacity and that the effect of the will is fully understood by the person creating it. Proper evidence and procedure is very important in circumstances like this, in which the new will was always likely to be badly received by the two children whose expectations of an inheritance were dashed."
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