The best way to minimise the risk of a successful challenge to your will is to have it drawn up by a qualified solicitor. Recently, a woman’s challenge to her elderly father’s final will was rejected by the High Court.
The man had made the will in March 2017, when he was aged 90. After his death in 2021, his daughter lodged a caveat against the will. The solicitor who had drafted the will and another partner in his firm brought a claim for pronouncement in solemn form of the will. The daughter counterclaimed, seeking to revoke the will and either establish that he had died intestate or uphold a will he had made in 2006. Her challenge to the 2017 will was on the grounds that he had lacked testamentary capacity, that he had not known and approved its contents, and that it had been procured by undue influence.
The 2017 and 2006 wills both provided for the residue of the man’s estate to be divided equally between his daughter and his son. However, the 2006 will had also appointed them as executors and trustees and provided for the man’s chattels to pass to them for distribution, whereas under the 2017 will the partners would take on those roles. The 2017 will also left legacies of £23,000, including £10,000 to each of the man’s two grandchildren by his son. The daughter’s desire to remain an executor of the will was linked to her desire to continue living in the man’s home. The relationship between her and the son had broken down, and it was common ground that the man had been aware of this by the time the 2017 will was made.
The solicitor who had drafted the 2017 will gave evidence that he had been in no doubt about the man’s capacity to make a will in the spring of 2017. In the Court’s judgment, that evidence was fully supported by the attendance notes, which showed that the man had understood the nature of the act of making the will and its effect, had understood the extent of his estate and what it comprised, and had been able to comprehend and appreciate the claims to which he ought to give effect. A proper assessment of all the relevant evidence pointed clearly to his having had testamentary capacity. Not only was the will rational on its face but the reasoning behind the changes from the 2006 will was clear. He had also known and approved the contents of the will.
The Court considered that there was no evidence of undue influence. It accepted that the son had made a single request that his father consider the question of executorship, but that had been by way of a suggestion or advice: it probably could not be described as persuasion, and persuasion did not amount to undue influence. The Court noted that most challenges based on undue influence involved a change to a will that was significantly detrimental to the person challenging it. That did not apply in this case: the daughter was not cut out of the 2017 will and her share of the estate was not significantly eroded by the legacies it contained. The Court pronounced in favour of the 2017 will.
