A recent case concerned the estate of a woman who died in 2008 aged 98. One of her sons had lived with her during the final three years of her life after she had suffered a fall. She made a will in 2006, which left her house to him and divided the bulk of the rest of her estate between him and his brother. She had made an earlier will in 1990, which divided the bulk of her estate equally between her two sons.

The brother challenged the will on the grounds that his mother lacked mental capacity when it had been made and for ‘want of knowledge and approval’ – i.e. that she did not understand the practical effect of the will. He also claimed that his brother had exercised ‘undue influence’ over their mother to persuade her to make the will which was favourable to him. He argued, in particular, that if she had known the value of her house, she would not have made the will she did.

The High Court’s examination of the will did not show any evidence that the woman had lacked mental capacity and her instructions to the will-writer were clear and comprehensive. The fact that she may not have known the value of her house was not in point. She would have realised that it was her largest asset. In the Court’s view, she had understood and approved of the will.

The Court ruled that even if she was misguided, the woman had the right to act as she did. The question of what might seem ‘fair’ to her family was not in point either.

Accordingly, only the undue influence challenge remained. Here, the Court considered the woman’s weakness and vulnerability, her high level of dependence on her son, the fact that the will-writer was previously unknown to the family and the fact that the preparation of the will was kept secret from the rest of her relatives until after her death. In addition, the Court heard that the will-writer had been given a false reason for her wishing to make a will. Lastly, her son was seen as having a ‘forceful’ personality and evidence was given that he had felt for some years that his brother had received preferential treatment at the hands of their parents.

Taking all the evidence into account, the Court took the view that ‘undue influence’ had been sufficiently well demonstrated to allow the challenge. The 1990 will was therefore admitted to probate, not the 2006 will.


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