Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.
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Will challenges can involve a great deal of time and expense, many times to the detriment of the estate. Often, the process begins with a disappointed beneficiary, who believes that the will of a deceased relative or friend is invalid. Unfortunately, the realities of litigation are such that many of these claims are very difficult to prove and the costs involved in proceeding by way of court application often make it prohibitive to do so. There are multiple grounds upon which a will challenge may be based; however, the two most commonly pleaded are lack of testamentary capacity and allegations that the testator was subject to undue influence. The test typically applied in respect of allegations of testamentary incapacity is the common law test set out in the 19th century case of Banks v Goodfellow (1869-70 L.R. 5 Q.B. 549):“A testator [a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he or she is disposing; [c] shall be able to comprehend and appreciate the claims to which he or she ought to give effect; and with a view to the latter object,[d] that no disorder of the mind shall poison his or her affections, pervert his or her sense of right, or prevent the exercise of his or her natural faculties – that no insane delusion shall influence his or her will in disposing of his or her property and bring about a disposal of it which, if the mind had been sound, would not have been made.” Accordingly, evidence such as medical records that suggest that a testator was suffering from dementia, while undoubtedly relevant, does not necessarily equate to a finding of lack of testamentary capacity. The test outlined above requires a more in-depth analysis of the testator’s state of mind at the time of execution of the will and consideration of supporting corroborative evidence. Proving such a claim can involve extensive record production (including solicitor, medical, and financial records), acquiring expert reports, and conducting examinations of material witnesses. Undue influence is an equitable principle that can be used to challenge the validity of a will. Undue influence involves the presence of coercion upon a testator, such that the wishes given effect in a will made under these circumstances cannot be said to be the testator’s own. Undue influence typically occurs behind closed doors and is accordingly, very difficult to prove in a litigation context. Although there are never any guarantees that a will challenge will not be raised post-death, there are preventative measures that can be taken to discourage a testator’s survivors from challenging a will. In the event that a will is nevertheless challenged, these steps may result in the preservation of evidence that may limit the likelihood of a successful challenge. For instance, in cases where the issue of testamentary capacity may be raised, obtaining a report by a registered capacity assessor may be a prudent course of action. With respect to potential allegations of undue influence, safeguards against a challenge on this basis can include meeting with the drafting solicitor alone as well as arranging independent transportation to and from the solicitor’s office. Other measures may involve executing testamentary documents with a solicitor with whom the testator is already familiar. Also, if English is not the testator’s first language or if there are any potential difficulties in vision or reading, visiting a lawyer who speaks the testator’s native language and/or is willing to take appropriate steps to ensure the testator is able to read (or have read to him or her) and understand the document prior to executing it, can be invaluable deterrents to allegations that the will was procured by undue influence.