The Private Client practice area at Matheson Ormsby
Prentice has seen a consistent increase over the past number of
years in the number of enquiries in relation to challenging Wills.
Some of the cases require litigation, others are resolved by
mediation or agreement between the parties. In the
landmark case of Scally v Rhatigan, we acted for the
defendant who successfully prevented a solicitor executor from
administering her husband's estate, due to a conflict of
One of the possible reasons for this is the challenging economic circumstances which prevail as claimants pursue value. However the difficult financial circumstances a claimant may be in is not of itself reason in law to justify such a claim. The claims fall into two broad categories.
The first category concerns challenging or contesting a Will on grounds of invalidity, lack of capacity, duress/undue influence, or conflict of interest of an executor.
The second concerns beneficiary claims by a spouse/civil partner, or children of the deceased.
There are prescribed formalities for the manner in which a Will is to be signed under the 1965 Succession Act (the "1965 Act"). This includes the requirement for the person making the Will (the testator / testatrix) signing in the presence of two witnesses with those two witnesses signing their name in the presence of the testator. Some of the other conditions prescribed by section 77 and 78 of the 1965 Act include a requirement that the testator be over 18 years of age and be of sound disposing mind.
It follows therefore that, in order for a Will to be valid, a person must have the appropriate capacity to sign the Will at the relevant date. The presumption of validity applies and it will be incumbent upon the person challenging the Will to assert the reasons for that individual not having capacity.
Duress and undue influence
The statutory formalities provide that the testator must make a
Will freely. Therefore to the extent that there is a third
party who has pressurised the testator into making a certain
provision for that person or to adapt a certain structuring in
their Will, such may be a valid reason to have the Will set
The concept of undue influence although related is distinct. It requires that a person who has by virtue of his relationship with the deceased significant influence over him / her and unduly exercises such influence, resulting in the Will being drafted in a certain manner to that person's knowledge.
If a Will is declared to be invalid under any of these claims by the court, the Will shall be set aside with any previous Will being resurrected and deemed to be the last Will.
In a number of cases, we have acted for beneficiaries who have successfully challenged executors who were conflicted. In some cases they stepped down by agreement. In Scally v Rhatigan, the solicitor executor was removed by order of the High Court.
Succession Act rights
Children - Section 117 of the Succession Act 1965
Unlike the position of a spouse who has a fixed legal
entitlement to a provision from their deceased's spouses
estate, children of a deceased do not have an automatic
entitlement. They do however, under the terms of the section
117 of the Succession Act 1965, have a right to apply for provision
from the estate and the court may order that such provision shall
be made if the court is satisfied that the deceased has failed in
his / her moral duty to make proper provision for the child in
accordance with his means, whether by his Will or otherwise.
One significant point to note is that generally the courts have
taken the view that the costs of the plaintiff, in taking such an
action, should be discharged from the estate, unless the claim is
deemed to be frivolous or vexatious.
Significantly, there is a strict statutory time period in which these claims must be brought which is six months from the issuing of the grant of probate in the deceased's estate. If the claim is not taken within that timeframe it is statute barred and can no longer be brought before the courts.
Spouses and civil partners
As mentioned above, a spouse and now a civil partner, has a
fixed entitlement under section 111/A of the 1965 Act to benefit
from a deceased spouse's / civil partner's estate.
This "legal right share" is a fixed entitlement to one
third of the estate where there are children and to one half of the
estate where there are no children. Note that a spouse or
civil partner has a right to elect between this legal right share
and the provision that is made in the Will.
By virtue of the introduction of the Civil Partnership and Certain Rights and Obligations of Co-habitants Act 2010, a qualifying cohabitee may also bring an application to court for provision from a deceased cohabitee's estate. This provision will not exceed the share which a spouse or civil partner is entitled to under the equivalent legislation.
The effect of a section 117 action or a legal right share application confirms the validity of the Will and in this regard can be distinguished from the claims under the heading "Will validity", noted above.
The multiplicity of claims that may arise and the fact that a
plaintiff's costs are generally discharged from the estate, may
result in further litigation in this area.
In the alternative it may be possible, subject to agreement with the other side to refer the estate dispute to mediation which is a more informal environment to address claimant concerns and generally will result in cost savings for the estate.
For those clients wishing to seek advice either in making a claim or alternatively defending such a claim in their capacity as executors and trustees, we are pleased to assist.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.