Contesting a Will: capacity, undue influence and validity

Jasmine Harland, Solicitor

Disputes over the validity of a Will often arise where there are concerns about testamentary capacity, undue influence or suspicious late-life changes. A recent High Court case highlights the legal risks and the warning signs that can lead to a Will being challenged. 

Why was the Will found invalid? 

The testator, who was suffering from advanced dementia, executed a new Will in 2020, just four months before her death. In a judgment handed down by Master Katherine McQuail, the court held that the Will was invalid on the following grounds:  

1. Lack of proper execution;,  

1. Lack of testamentary capacity; ,  

1. Want of knowledge and approval; and  

1. Undue influence. 

By the time of the 2020 Will, the testator was entirely dependent on her son and his wife. Her updated Will had disinherited her other son,  a huge deviation from her previous will made in 2018. 

What is testamentary capacity?  

Applying the well-established test in Banks v Goodfellow, testamentary capacity requires that a testator understands the nature and effect of making the will, the extent of their estate, and the claims of those who might expect to benefit. On the evidence, the court was not satisfied that the criteria were met. 

What counts as undue influence in a Will dispute?  

The court also found that the testator’s vulnerability had been taken advantage of. Unlike many claims of undue influence, which is often difficult to prove, the evidence in this case demonstrated that pressure and undue influence was used for material gain. The 2020 will was therefore set aside, and the estate would instead be administered in accordance with her 2018 will.  

Common red flags when making or changing a Will 

This decision highlights the importance of recognising common ‘red flags’ in will preparation, including increasing dependency on a particular beneficiary, sudden or unexplained changes to longstanding testamentary intentions, any signs of isolation and influence, and instructions given at a late stage in life. Here, the court has demonstrated its willingness to intervene where the integrity of the testamentary process has been compromised. 

For legal professionals, the case reinforces the importance of assessing and recording capacity and ensuring that instructions are given freely and independently. Where capacity is in doubt, it becomes much more difficult to demonstrate that a testator has understood and approved the contents of their will. 

How to reduce the risk of a Will challenge 

Professionally drafted wills which are supported by clear evidence of capacity remain the most effective safeguard against any later challenges. Individuals should consider seeking advice as early as possible, particularly where there are concerns around family dynamics.  

If you are concerned about the validity of a Will, or need advice on contesting a Will due to lack of capacity or undue influence, our contentious probate team can help. We advise individuals, executors and beneficiaries on Will disputes, inheritance claims and estate administration issues. Please contact the team at [email protected], or call 0161 832 3434.