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Sophie McDonnell

Sophie McDonnell

Dispute resolution

A case has recently been heard in the County Court at Central London, which resulted in a daughter succeeding in her claim that her late father’s will was invalid. The daughter was left out of her late father’s will, and she challenged the validity of his will on the basis that he lacked the requisite testamentary capacity in executing the same and/or did not know and/or approve its contents and/or that her stepmother exerted undue influence on her father as regarding the contents of the will. In this article, we explore the legal foundation behind claims of testamentary capacity in will disputes outlining the difficulties often associated with contested wills.


The facts

The deceased was a 94-year-old millionaire who died only 11 months after he married his carer, who was 39 years younger than him. Shortly after the marriage he executed a new will which provided for his entire estate to be left to his wife with no provision being made for his adult daughter.   

The outcome of this case is interesting to see, considering the difficult steps disappointed beneficiaries need to prove in a claim of this nature.


The law on valid wills

As well as complying with the formal provisions of Section 9 of the Wills Act 1837, for a will to be valid the testator must have the requisite testamentary capacity to execute a will at the time of execution. In addition, a testator must know and approve of the contents of the will, and it must reflect their wishes and not, for example, be influenced by other persons.


Testing for testamentary capacity

The common law test for assessing testamentary capacity was set out in the case of Banks v Goodfellow 1870, which provides that the testator must:

  • Understand the nature and effects of making a will.
  • Understand the extent of his or her assets they are disposing of under the will.
  • Understand and appreciate the claims to which they should give effect; and
  • Not suffer from any “disorder of the mind” that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their assets by the will.

A testator’s testamentary capacity is presumed. That presumption can, however, be rebutted if the contents of the will are such as to excite the court’s suspicion.

If a will is prepared by a lawyer or a professional will writer, they should satisfy themselves that the testator understands and is able to execute the will – the so-called Golden Rule.  As they have a more stringent role of assessing a testator’s testamentary capacity and keeping a full note of their assessment and the testator’s instructions, any statement to the court that the testator had the necessary testamentary capacity to execute the will is likely to carry significant weight with the court.  This will therefore make any potential challenge to the will more difficult. In addition, it is likely that an expert opinion from a medical practitioner as regards the testator’s mental health would be required.


Knowledge and approval

A testator must have known and approved the contents of the will. The test for knowledge and approval is clear – did the testator understand (i) what was in the will and (ii) what its effect would be at the time of execution? If they are found to lack knowledge and approval, the will is therefore invalid.   

As with testamentary capacity, it is presumed that the testator did know and approve of the will’s contents if there has been due execution of the will, the testator had testamentary capacity to make it and, on its face, the will appears to be rational. However, some circumstances surrounding the execution of the will could be suspicious.

Such suspicious circumstances may include:

  • when the beneficiaries named in the will are unexpected or the will significantly differs from prior wills.
  • unusual or complex provisions in a will that are inconsistent with the testator’s prior wishes.
  • the will contains spelling mistakes and uses language which the testator would not have understood.
  • the will contains untrue statements.
  • the will is homemade, and no professional advice has been obtained.

Each case will turn on its own facts but as with testamentary capacity, it will be harder for any will prepared by a lawyer or a professional will writer to be challenged, particularly if the will drafter has read over the contents of the will to the testator and satisfied themselves that the contents meet with the testator’s approval.


Undue influence claims

Challenging the validity of a will on the basis of undue influence requires a finding that someone has exerted pressure or coercion or even manipulation by one person to influence the testator’s decision regarding their will. 

As with lack of knowledge and approval, each case will turn on its own facts, but some common factors which may give rise to undue influence are as follows:

  • Was the testator isolated from support from friends or family?
  • Was the testator dependent on someone albeit for care or companionship which they may feel obliged to comply with their wishes?
  • Did the testator make extreme changes from a previous will excluding close family and providing a substantial benefit to an alternative individual?
  • Was the testator under pressure from an individual with threats, coercion, or deceit on the contents of their will?

Undue influence claims are very hard to prove. To succeed, the court must be satisfied that the undue influence caused the testator to act in a way other than by their own free mind when executing the will. Substantial evidence demonstrating the actual undue influence will be required.  This need not be restricted to witness evidence from the party bringing the claim. Evidence from other parties, even if they have no interest in the deceased’s estate, can also be included.



Whilst it is not possible to ensure that no challenge will be brought as regards the validity of your will, a will drafted by a legal representative can ensure that the best protection possible is given to testators in making a valid will as they should satisfy themselves that the testator has testamentary capacity, understands the will they are making and that the contents truly reflects their wishes. If you are considering having a will drafted, please contact our specialist wills, trusts and probate team.

If however, you believe that you have grounds for contesting a will or defending a claim it is advisable to seek legal advice and in which event, please feel free to contact one of our specialist lawyers, Ally Tow or Sophie McDonnell in our firm's dispute resolution team.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

Get in touch

If you have any questions relating to this article or have any legal disputes you would like to discuss, please contact the Dispute Resolution team on

[email protected]
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