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Bid to contest validity of Will on multiple grounds is thwarted
There are four grounds on which the validity of a Will might be challenged. The most common of these is when doubts exist over the mental capacity of the person making the Will (testator) to understand the process or its content. A Will may also be challenged on the basis that the testator did not have knowledge of or give approval to its terms. Equally, there may be legitimate concerns that undue influence has been exerted on the testator to change the terms of the Will or that the document has been forged or is fraudulent in some way.
Often it is clear which ground applies, based on the facts involved. However, sometimes more than one ground may apply and a decision must be made on whether to bring a claim on multiple grounds or select a single ground which is easiest to demonstrate and therefore most likely to succeed.
In Barnaby v Johnson , the claimant chose the former option, one that tends to carry more risk of failure. The strategy backfired spectacularly in this instance. Summing up, the presiding Judge stated the defendant had “come nowhere near establishing the basis for any proper challenge” and had presented “contradictory, self-serving and deliberately misleading” evidence.
Having previously made a Will in 1992, under the terms of which her daughter (the defendant in the case) was due to inherit a £10,000 legacy, Mrs Bascoe made a second Will in April 2005. In her later Will, she left only £100 to her daughter, and the remainder of her estate to her son, the claimant. Mrs Bascoe had another daughter who had died in 2017 and to whom she had left the sum of £500. In her 2005 Will, Mrs Bascoe explained that was leaving notably smaller legacies to her daughters because they had shown her “very little care and concern” and also claimed that they had also been verbally and physically abusive towards her.
Mrs Bascoe appointed the solicitor who drafted the Will and her surviving son as executors. As the personal representatives of the estate, they issued a claim confirming the validity of the 2005 Will, which was opposed by the defendant. Any failure by the claimants to prove the validity of 2005 Will would result in the defendant receiving the full £10,000 inheritance designated to her in Mrs Bascoe’s 1992 Will.
The Defendant alleged the 2005 Will was invalid on all four grounds laid out above, including the forgery of Mrs Bascoe’s signature on the document. However, the judge ruled in favour of the Claimants, finding that there was no evidence to support the Defendant’s case on any of the grounds put forward.
The judge concluded that the 2005 Will was “rational” and “properly executed” and the evidence of the solicitor and attesting witnesses “cannot be impugned”.
This case highlights the necessity to compile sufficient and convincing evidence when challenging a Will. The onus to do so will naturally increase if multiple grounds are pursued and, in such situations, it is important to consult a specialist solicitor to examine the strength of a case before going ahead with a claim.