Evidence Needed When Contesting A Will

Katie de Swarte

There must be a clear legal reason to contest a will on someone’s death, backed up by strong evidence.

A will can be contested for the following reasons in England and Wales:

1. Lacked of testamentary capacity
2. Undue influence
3. The will or its signature is a forgery
4. Lack of knowledge and approval
5. The will is not executed properly / doesn’t meet legal formalities.

Each of these reasons has its own set of requirements for evidence.

Lack of Testamentary Capacity

Testamentary capacity refers to the mental capacity of the person making the will (the testator) at the time it was created. The law says that, when a will is drawn up, the person making it must be of “sound mind, memory and understanding.” This means they must:

• Understand they are making a will
• Roughly know what assets they’re leaving
• Understand the consequences of excluding or including certain people from their will, and
• Not have an illness such as dementia, mental illness or delusions

It’s presumed that a testator has mental capacity, unless there is clear evidence to the contrary.

What evidence is needed to prove lack of testamentary capacity?

Medical evidence, such as capacity assessments, can usually show whether the testator had mental capacity. Witness statements from people who were in close contact with the deceased are also important for painting a picture of their mental state. The evidence of the solicitor who prepared the will is also important.

If a will is rational on its face capacity will be presumed and it will be for the person who is raising concerns as to capacity to prove the same. This is not always clear cut. Where someone has a degenerative condition like Alzheimers’, they can be lucid some days and not others. To challenge the will, you would have to prove that, at the time the will was created, the testator lacked capacity.

Undue influence

A will is not valid if it was made because of pressure from another person, known as “undue influence.” This could include a range of coercive behaviours, from physical violence to verbal threats and the slow drip, drip of pressure designed to wear the testator down.

What matters is not the behaviour itself, but whether it overcame the testator’s free will. Did it cause them to draft a will that does not reflect their true wishes?

What evidence is needed to prove undue influence?

Undue influence has a high evidence threshold because it is hard to prove. It’s relatively common for someone to appeal to family ties or affection in the hope of securing an inheritance (“You know I’m the only one who really cares about you”), but that is not considered undue influence unless it clearly overpowered the deceased’s own wishes.

The court will need to be satisfied that coercion is the only reasonable explanation for the testator’s actions. Specifically, you’ll need evidence to show they acted out of character, doing something very different in their will to the wishes they expressed before. Witness testimonies can be valuable evidence in these cases, as can letters, emails, text messages etc. showing attempts to influence or isolate the testator. But since coercion tends to happen behind closed doors, this evidence can be hard to come by.

Undue influence case study: Scrap King millionaire Tom Goodwin

In 2021, Gary Goodwin, son of self-made millionaire and ‘scrap king’ Tom Goodwin, won his late father’s £4 million fortune after a legal battle with his sister over his father’s will. Tom had fallen out with all of his children over the years, resulting in several will changes before his death. The siblings asked the High Court to determine which version should prevail.

The main allegations were around undue influence. The sister alleged that Gary had “physically dominated Tom, acting in an aggressive and controlling manner towards him in his old age.” In a belt-and-braces challenge, she also claimed that Tom was not of sound mind when making the 2017 version of his will which left everything to Gary.

The court disagreed on all fronts. The judge determined that Mr Goodwin was not scared of his son and was not “overawed by or in any way subject to the undue influence of anybody.” The judge was also satisfied that Mr Goodwin retained full mental capacity. Witnesses testified that the terms of the will reflected his wishes and had been discussed with him before he executed it.

• For more information on the rise of older and vulnerable people being pressured into changing their will, read our blog post: What is fraudulent calumny?

Fraud and Forgery

A will is not valid if either the will itself or the signature on it is a forgery. This can include scenarios where:

• The whole will is a fake.
• Someone impersonated the testator and forged their signature.
• The testator was tricked into signing the will, believing it to be a different document.

What evidence is needed to prove fraud or forgery?

In many cases, a handwriting expert is needed to compare the signature on the will with known examples of the testator’s writing. Previous versions of the will can often be useful as they shed light on the testator’s intentions. Witness testimonies or CCTV footage showing who was present when the will was signed can also be important evidence.

Fraud is a criminal offence, and the standard of proof is very high when allegations of fraud are made. The person challenging the will needs to establish fraud or forgery beyond reasonable doubt. If the handwriting expert’s report is inconclusive, it is unlikely that a claim for forgery will succeed. Read how a beneficiary successfully contested a forged will with the help of a handwriting expert.

Lack of knowledge and approval

For a will to be valid, the testator must have knowledge and approval of its contents. This will be presumed in the vast majority of cases, assuming the will was executed correctly.

However, suspicions can be raised if it is a “DIY” will and the testator took no advice in relation to it. A common scenario is where a beneficiary gives instructions for what should appear in the will, or even writes the will themselves, and the testator simply signs it without reading it over.

What evidence is needed to prove lack of knowledge and approval?

When the will has been prepared by someone other than a solicitor, it’s generally easier to persuade a court that the testator didn’t know or approve of its contents. A combination of evidence may be needed to build a case, such as:

• Medical records showing the testator’s physical or mental impairments that may have affected their ability to understand the will’s contents
• Witness testimonies from people who observed the testator’s state of mind or behaviour around the time the will was executed.
• Documentation showing suspicious circumstances surrounding the will’s creation, such as drafts prepared by someone who benefits from the will, or the testator mentioning different terms to what actually appears in the will.
• Letters or text messages indicating the terms of the will are not in accordance with the testator’s known intentions.

Will does not meet legal formalities

Section 9 of the Wills Act 1837 sets out various requirements that must be met for a will to be valid. In particular, the will must be signed by the testator in front of two or more witnesses, and those witnesses must also sign the will.

The courts take a pragmatic approach when interpreting this section. They’ve held that thumbprints, initials and even the wrong name amount to a legal signature, and you can literally write the will on the back of a cigarette packet, as long as the necessary formalities are met.

What evidence is needed to prove a will does not meet legal formalities?

In most cases, it is fairly obvious whether a will meets the necessary formalities. When disputes arise, it’s often over whether witnesses were actually present when the testator signed the will. Their evidence is crucial. If a witness admits to signing the will later (or not at all), that may be enough to invalidate the will.

The easiest way to avoid disputes over a will’s validity is to have it properly drafted by an experienced wills solicitor. Your solicitor can supervise the execution of the will and hold onto it for safekeeping to avoid any potential challenges in the future.

• Related reading: How to prevent someone contesting a will

How can we help?

Katie de Swarte is a partner who specialises in contested claims. Katie can advise you on whether you can bring such a claim based on the facts of your circumstances and can assist in defending such a claim. Katie is featured in the Legal 500 as a recommended solicitor in London.

Please call 020 7485 8811 or complete an online enquiry form to speak with Katie.