Esther Marshall
Contested Wills and Financial Provision
Wills validity challenges in the news
The latest high profile will contest in the High Court sees the family of prima ballerina and choreographer Clover Roope in a battle with her goddaughter.
The dancer, who died in April 2019, left her entire estate to her nephews in a Will made in 2011, which replaced a 2006 Will. The earlier version had left quarter of her estate to Emma Hindmarsh, who claims that Ms Roope, a committed feminist, ‘wasn’t in her right mind’ when she cut her out of the Will as there was no credible reason for such a change.
Ms Hindmarsh is challenging the validity of the newest Will, claiming that the fact men were involved in it being changed proves that Ms Roope had lost her mental capacity by the time it was made. Ms Roope was suffering from dementia when she died and her goddaughter says the condition must have been so advanced by 2011 that she didn’t know what she was doing. The case is continuing.
Will validity challenges are becoming more common.
The key requirements for a Will to be valid in England and Wales are that it:
- Be in writing;
- Is made by a person over 18 years of age (unless exemptions apply);
- Meets the formalities of signing and witnessing;
- Is made voluntarily with understanding of the document and free from outside influence or fraud; and
- That the person making the will (“the testator”) has the required capacity to do so (often referred to as being of sound mind).
The test for testamentary capacity to make a Will is well established:
- The testator should understand their act in making the Will and the effect of the Will;
- They should understand what property they have and which is being dealt with/disposed of under the Will;
- They need to appreciate the claims that may relate to their estate and who they will be giving gifts/inheritances to; and
- They should not be suffering from a disorder of the mind that would impact their ability to make decisions or understand the Will and its impacts.
Martyn Trenerry, Member and Solicitor in Contested Wills, said:
“The test applies to the capacity of the testator at the time they are making the Will and so evidence from that time will be necessary in a dispute over the validity of the Will. Some mental health issues can mean that capacity fluctuates, and this makes medical evidence even more important. In cases where the testator has known health conditions, is frail/elderly or vulnerable, it is also best practice for the Will drafter to arrange for a medical report to be prepared on capacity.
If a Will appears rational, then there is a presumption that the testator will have had capacity to make that Will. It is for the person alleging the testator lacked capacity to raise a dispute and evidence casting doubt on the capacity, at which point the person trying to uphold the Will would need to prove the capacity of the testator.
Disputes over capacity and validity of a Will can be very complex and so seeking early specialist advice is always best.”