Recently, we have seen a spike in the number of cases where the validity of wills are being challenged, mainly due to accusations of undue influence being exerted.
We act on both sides of these cases; on behalf of prospective claimants, and on behalf of executors and beneficiaries in seeking to address claims being brought when it is alleged that the person making the will might have been influenced or pressurised by someone else to decide how to leave their estate.
The concerns held by the claimants often appear to be legitimate and genuine, but the evidence retained of the alleged conduct is usually lacking.
Although the standard civil burden of proof applies, in that a claimant must prove their case on the balance of probabilities, in my experience judges often require strong evidence in such cases to show that the person making the will (the testator) was influenced in some way. That is due to the seriousness of the conduct alleged, and the consequences which may follow, and given testators should have freedom to leave gifts to whom they wish.
Evidence also needs to be specific. It will not necessarily be enough to prove that pressure or influence was potentially being exerted upon a person generally, prior to their death. Claimants need to prove that such conduct occurred specifically concerning the preparation of their last Will, and that it would not have been prepared in such a manner had that conduct not occurred.
Evidence that a person arranged for a testator to see a solicitor to change their Will, or even escorted them to such meeting, may seem suspicious, but that evidence alone is perhaps indicative only and it will likely be insufficient without further supporting evidence.
When considering whether to take action through the courts, prospective claimants should consider the following:-
- Did the testator report any concerns about the conduct of any parties regarding the preparation of their will? Is there a record of this?
- Did you (or anybody else) make your concerns known to any other people, including the testator and/or the person(s) in question or any public authorities, during the testator’s lifetime? Is there a record of this?
If so, this may help legitimise the concerns raised post-death. It can demonstrate that the claimant legitimately held concerns during the testator’s lifetime, and it can help counter any argument that the claimant is now simply unhappy with the terms of the testator’s will.
Such cases are tough to litigate, and of course potential claimants should not be expected to plan to have to make such a claim. However, these cases are difficult and costly to bring, and claimants must carefully consider the strength of their evidence before litigating.
Please contact us on 0151 236 8871 if you would like to know more, or you can read more about our Wills and Probate, Court of Protection and Trusts services here.