What to do if you’re suddenly cut out of a will

Nicola Waldman highlights circumstances in which you might consider challenging a Will.

The story of Sam James, a man suing his mother and sisters after he was disinherited, hit the headlines recently. Private client partner Nicola Waldman from London law firm Hodge Jones & Allen picks up the story and offers advice to anyone facing a similar situation.

“Briefly, 60-year-old Sam had worked on the family farm his whole life on the promise that he would inherit it. But, following his father’s death, Sam got nothing and believes his mother persuaded his father, while he was suffering from dementia, to amend his will to exclude Sam,” Nicola says.

“The ruling from the courts has yet to be given, but the case throws up some interesting legal points for anyone who believes they’ve also been unfairly cut out of a will.

“Sam’s case likely focuses on grounds of capacity – or rather his father’s lack of capacity when signing the will – plus undue influence from his mother.

“Sam may also be able to bring a claim for proprietary estoppel, mainly applicable to land and rights over property, a law consisting of three main elements: A promise or other encouragement made by X to Y; Y relied on that expectation; detriment to Y for relying on that promise.

If Sam can show that his father had promised him the farm if he worked there for life, possibly for free, he could clearly argue that he relied on that promise to his detriment. The court might then consider it appropriate to award him the farm – or something of similar value from the estate.

Although Sam’s story is fairly dramatic, more people than you might expect seek to contest a will when they feel they’ve been treated unfairly.

The most common grounds are:

• Want of due execution: that the will was not executed correctly i.e. signing it in the presence of two witnesses, both present at the same time and who then sign in the presence of the testator (the person whose will it is).
• Capacity: when a person signs their will, they must understand what they are doing, the extent of the property they are giving away and the claims which they should consider and for the last of these, there must be no disorder of the mind which would ‘poison his affections, pervert his sense of right or prevent the exercise of his natural faculties, and no insane delusion must influence his will in disposing of his property’. This test for capacity was established in a case in 1870 and although it has been developed by later cases, the test still holds good today.
• Undue influence: where it is alleged that the person signing the will only did so because they were coerced or because someone deliberately and falsely poisoned their mind against a potential beneficiary.
• Fraud: when someone makes false claims to the testator about the character of a potential beneficiary in an attempt to ensure they don’t benefit.
• Want of knowledge and approval: that when the testator signed their will, they did not know what was in it and did not approve of it. Generally, if a will appears valid on the face of it, then in the absence of any contrary evidence, it is accepted as such, but, in suspicious circumstances, confirmation is required. This may be when someone prepares a will for the testator where they are the main beneficiary or when, say, the testator is blind.
• Sham: that the will was not intended to be one i.e. that although it looks like a will, the person signing it did not intend that it should be one.

This article first appeared in Final Choices, November 2017.