Disputing a Will

A Will, to be valid, must be made by a person who is 18 years or over or, if under 18, is or has been married. A person must also be of ‘sound disposing mind’. These words has given rise to many disputes before the courts in relation to the validity of wills. There are several grounds upon which a will may be challenged:

• testamentary capacity – was the testator mentally capable?;
• lack of approval or knowledge of the meaning of the will;
• undue influence – did someone influence the testator?;
• duress – did someone bring pressure to bear?;
• failure of duty to a potential beneficiary usually a family member;
• failure to provide for the legal right share – usually a spouse or civil partner;
• failure to make proper provision for a child or children – adult or minor.

Testamentary Capacity

The case of Banks v Goodfellow 1870 laid down the test for testamentary capacity:

"It is essential that a testator shall understand the nature of the act and its effects: shall understand the extent of the property of which he is disposing, shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or pervert the exercise of his natural faculties:- that no insane delusion shall influence his willing disposition of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

In the case of Re Key the test in Banks v Goodfellow was expanded:

A testator of 89 years of age and his wife had been married for 65 years. His daughters arranged for him to execute a will one week after the death of his wife. In that will he left his property to his two daughters. In his earlier will he had left it to his two sons. After his death the sons naturally tried to challenge the new will and claimed in court that he lacked testamentary capacity to make this new will. On application of the Banks v Goodfellow test the will would have survived the challenge however the court extended the test and decided that affective disorder such as depression, often brought on by bereavement, is more likely to affect powers of decision making than comprehension. While the testator may have the capacity to understand the extent of his property and who his relatives and dependants are, he may not have the mental energy to make any decisions of his own about whom to benefit in his will. The court concluded that a bereavement can amount to “severe affective disorder” which , combined with his pre-existing cognitive impairment, was sufficient to deprive him of his testamentary capacity. Therefore decision making powers will be taken into account along with comprehension.

The evidence of the solicitor who took the instructions from the testator and his attendance notes are critical along with the evidence of the family members, doctor and carers of the deceased. It is therefore important for a solicitor to organise for a doctor to assess the mental capacity of an elderly or ill person. An affidavit of Testamentary Capacity should also be obtained from the doctor before the will is signed. Lord Carnworth observed that while

"there is no possibility of mistaking midnight from noon, at what precise moment twilight becomes darkness is hard to determine."

Lack of Knowledge and Approval of the meaning of the Will?

In the case of Gill v Woodward 2010 Mr and Mrs Gill who had a daughter made mutual wills (bequeathing assets in favour of each other) and on the death of the survivor the estate went to the RSPCA. Their daughter challenged the will of her mother who was the last to die. She alleged lack of knowledge and approval on the part of her mother with whom she had a good relationship. There was evidence presented about the manner in which the will was made without her telling her daughter. The court heard that she suffered from severe agoraphobia and her husband had a domineering and capricious personality. She found it difficult to absorb information and concentrate. All of the evidence surrounding the making of the will was considered. The court found that it was unlikely that Mrs Gill would, of her own volition, have misled her. The will was set aside on the basis that she did not know and approve the contents of the will.

Undue Influence and Duress

If the court is satisfied that a will was made under duress and or undue influence exerted upon the Deceased by another person then it may strike down the will as it was not executed freely and of the testator’s own volition. Undue influence can arise in many ways such as the opportunity for gaining influence over the testator. the mental and physical wellbeing of the testator, dependence on the assistance of a particular person, the age of the testator.

Failure of Duty to an intended legatee.

A solicitor in preparing a will owes a duty of care:

"to ensure that the wishes of the testator are not frustrated and the expectancy of the legatee defeated…"

There should be no delay in the preparation of the will. If a solicitor is asked to prepare a will and fails to do so in a timely manner, then if the testator dies without having signed the will the disappointed beneficiaries may have a claim against the solicitor. They were clearly deprived of their legacy by the negligence of the solicitor. Where a client is elderly or likely to die then anything other than a handwritten rough will prepared on the spot for signature may be negligent.

Legal Right Share

A surviving spouse and civil partner have a special status under Irish inheritance law and are afforded special protections whether the deceased spouse or civil partner died with or without a Will:

Will:

If a person dies testate (with a will) and leaves a spouse then:
The spouse is entitled to one half of the estate and where there are no children;
The spouse is entitled to one third of the estate where there are children.

Where there is a bequest in a will to a spouse then he or she may choose to take either that bequest or the legal right share. Failure to choose means they take the bequest. The legal right share is calculated by reference to the net estate after payment of debts funeral and testamentary expenses. Excluded from the calculation is property held jointly and assets which go to a nominated person.

A spouse who has been left out of a will is automatically entitled to receive his or her legal right share without having to elect.

A surviving spouse may forfeit his or her legal right share if guilty of murder, attempted murder, or manslaughter of the other, or guilty of an offence against the deceased or against a child of the deceased punishable by imprisonment for a period of at least two years.

If the deceased transferred assets within three years of death in order to deprive the spouse of her legal right share then an application may be made to include the value of those assets in the calculation of the value of the legal right share.

Time limits apply. The legal personal representative must notify the spouse of her right to a legal right share.The spouse then has 6 months from the date of receipt of notification or one year from the date of the Grant, whichever is the later, to exercise the right to appropriate.

No Will:

If a person dies intestate (no will) and leaves a surviving spouse then: The spouse is entitled to the entire estate where there are no children and: Where there are children the spouse is entitled to two thirds and the children are entitled to one third.

It is important to examine any agreements or court orders. A court may have extinguished the share of a spouse in a judicial separation or a separated spouse may have renounced her inheritance rights in a separation agreement

A legal personal representative, an executor or administrator, is also under a duty to bring the death to the notice of the separated surviving spouse. Even a divorced spouse who has not remarried is entitled to apply to court for provision out of the estate!

A spouse should always take legal advice before making an election as the rules governing the spouses rights are complicated and can be a trap for the unwary.

Failure to make proper provision for children

A child has no automatic rights to a share in the estate of his or her parent. However a parent has a moral duty to make ‘proper provision’ for a child (whether a minor or an adult child). A child has the right to apply to court for a share of the estate where proper provision has not been made in a will.

Various factors will be taken into account by the Judge when hearing the case such as:

• All of the testators moral obligations;
• The age of the child making the claim and his or her circumstances;
• Whether there are any special circumstances such as physical or mental illness.
• The amount of any bequest to the child in the will if any;
• The amount left to the surviving spouse;
• The number of children in the family and their ages and circumstances;
• The means of the testator;
• Details of any gifts or provision made for the child during the deceased's lifetime.

If there is no surviving spouse the child or children will take all. Where there is a surviving spouse, where there is no will, the child is legally entitled to one third of the estate.