What do the reforms mean for will validity and challenges?

The need for reform

The current law regarding wills is old and complex; it is governed by the Wills Act 1837 and case law from across the last centuries. Understandably, much has changed in the past 200 years and many feel that aspects of the law are outdated and unsuitable for the modern day. Whilst some of the old law has stood the test of time, the Law Commission recently published their recommendations for reforms with the primary aims of supporting testamentary freedom, protecting testators (particularly against undue influence and fraud) and to increase clarity and certainty wherever possible.

But are there going to be changes in the way a will can be challenged?

The Law Commission have highlighted the general difficulty in proving will validity. Assessments about a will’s validity take place after the testator has died, when they cannot provide any evidence about how the will was made. Often, challenges to a will’s validity happen many months, years or even decades after the will was executed. Additionally, the Law Commission recognise that fraud and forgery in will cases is increasingly common, particularly among those who are close to the testator, such as a family member, friend or carer. With their reforms they hope to provide greater protection to testators, particularly those who are vulnerable, by introducing safeguards against abuse.

Undue influence

One of the main concerns that the reforms wish to address is regarding the law surrounding undue influence. In the Law Commission’s view, it is currently too difficult to challenge a will on the basis of undue influence due to the difficulty in proving it. In many cases, undue influence happens behind closed doors and by someone close to the testator, which presents a significant evidential burden for those challenging the will to overcome.

The Law Commission is also concerned about the apparent tendency for people to challenge a will on the basis of a lack of knowledge and approval where the main concern is one of undue influence. For example, a challenge may be phrased in such a way that the testator “understood the content and effect of their will but it did not reflect their intentions”, in order to circumvent the evidential hurdle of undue influence. In addition to recommending changes to the law of undue influence, the Law Commission also wish for the requirement for knowledge and approval to be placed on a different statutory footing from that of undue influence, setting clear boundaries between them.

It is therefore recommended that the court will have the power to infer that a will was brought about by undue influence where there is evidence that provides reasonable grounds to suspect it. The parties will need to evidence that there is a reasonable basis that undue influence took place for the court to infer it as such, with the burden shifting to the other party to demonstrate that the will is valid and was not created as a result of undue influence. In determining this the court will need to consider any relationship of influence between the person alleged to have exerted influence and the testator, that person’s conduct in the will making process as well as considering the circumstances in which the will was made.

Capacity

Arguably, the most common ground on which a will is challenged is whether the testator’s had the requisite capacity to make the will. The current capacity test was established in the case of Banks v Goodfellow. The Banks v Goodfellow test applies to wills only. For all other transactions in a person’s life, the test for capacity is as set out in the Mental Capacity Act 2005.

The Law Commission’s view is that it is confusing to have two tests and that the test for capacity to make a will should also be governed by the Mental Capacity Act 2005.  The Mental Capacity Act 2005 provides a clear test for capacity which can be applied throughout a person’s life. Case law will remain relevant to the application and operation of the Mental Capacity Act 2005 when assessing someone’s capacity.

The Law Commission’s proposals should provide greater clarity and modernisation to the claims that can be made against wills.

Expert support in will disputes

The Law Commission’s proposals mark a significant step towards modernising the law of wills, aiming to reduce uncertainty while ensuring protection against abuse and undue influence. For those dealing with the difficult circumstances of a will dispute, however, the issues can remain complex and emotionally charged.

Our dedicated Disputed Wills, Inheritance, and Trusts team has extensive experience in handling these sensitive matters, combining specialist legal expertise with a supportive approach. If you are concerned about the validity of a will or need guidance on an inheritance dispute, please get in touch with the team today on 01202 525333.