To whom you please

A recent case saw a retired civil servant lose his battle to challenge the validity of a will made by his late wife, days before her death, in which she left her entire estate to the son of her first marriage.

Mrs Henein executed a severance of joint tenancy of the matrimonial home, meaning her half of the property passed to her son under her will, and Joseph Henein, her husband of over 30 years, was left with nothing but half of the house, which will now most likely be sold to cover his legal bill of £126,000.

Disputes over a will, and in particular the situation that Mr Henein found himself in, are not uncommon, especially in second marriages where different sides of the family have competing needs, and there is no blood relationship as an incentive to sort out matters amicably.

We have seen a marked increase in will disputes over the last ten years and there are several potential grounds upon which a will can be challenged. Some of these were argued by Mr Henein.

Mentally capable?

Lack of testamentary capacity is often pleaded, as in this case, where Mr Henein argued that his wife lacked the requisite mental capacity to make her will.

The test of mental capacity, as laid down in Banks v Goodfellow [1870] (recently upheld by Walker v Badmin [2014]), is that the testator must understand that he is making a will, understand the extent of the property being disposed of, and be able to comprehend and appreciate the nature
of any possible claims against the will.

Full awareness

Another option available to someone wishing to challenge a will is 'knowledge and approval' of the will. As highlighted in the recent case of Sharp v Hutchins [2015], the court must determine whether the testator understood what was in the will when he signed it,
and what its effect would be.

There is a presumption that a testator who executes a will in accordance with the Wills Act 1837, does so with knowledge and approval. As such the evidence put forward by the claimant must be sufficient enough to 'excite the suspicion of the court' and the propounder of the will is unable to dispel those suspicions.

Coercion

Undue influence is another ground for a claim. Mr Henein argued that his wife had been unduly influenced by her son. The decision in Brennan v Prior [2013] established that there must be 'coercion' that is causing the testator to do something he did not intend.

While shunned family members might be quick to assume their relative has been unduly influenced, claims are notoriously difficult to prove.

Perhaps this case would not have been quite so newsworthy had Mrs Henein not executed a severance of joint tenancy, depriving Mr Henein of automatically receiving her share of the matrimonial home.

She was however quite within her rights to do this and severing a joint tenancy is not in itself
a ground for a claim.

To whom you please

Unlike in some EU states, testators have testamentary freedom in the UK and may leave their assets to whomever they wish. The exception being if the way in which they leave their assets fails to make 'reasonable financial provision' for one of the categories of claimant (of which the spouse is one), under the Inheritance (Provision for Family and Dependants) Act 1975, and the testator is UK domiciled at death. Mr Henein did not use this ground in this case.

Wills frequently give rise to feelings of disappointment for would-be beneficiaries which can lead to contentions that the will did not reflect the testator's true wishes. If judges were too ready to accept such contentions,
the principle of testamentary freedom could be undermined.

We always advise clients who are intending to exclude or partially exclude a close family member, to leave a written statement with their will setting out the reasons for doing so. If a would-be beneficiary understands why someone else has been chosen to benefit over them, they may be less inclined to make a claim; but if a claim is nevertheless made and the written reasons are good, true and accurate, the court will take them into account.

Sadly for Mr Henein, it looks as though he did not understand why his wife chose to exclude him, but the cost of trying to right the injustice he felt
has proven to be very expensive. 

Emily Minett is a solicitor at Wedlake Bell