Commonly known, wills distribute one’s estate how and to whom they wish in the event of their death. A probate claim is defined as a claim for the grant of the legal right to deal with someone’s will or letters of administration, the revocation of such a grant, or a decree pronouncing for or against the validity of a will. It is on grounds such as mental incapacity, lack of understanding and forgery that one can formally object against the validity of a will. This is known as contesting a will. In such instances, through experienced solicitors, expert evidence is required to assist the court in reaching its decision as to whether the will is or is not valid.
In a claim that the deceased did not have the required mental capacity when the will was drafted and executed, the expert evidence acquired is usually the opinion of a medically qualified person. A claim of insufficient mental capacity is date and issue specific so the expert will gather and analyse recent medical documents to establish the state of the testator’s mental abilities at the relevant times.
A similar approach is likely to be taken with a claim that the deceased did not properly understand and approve the content of the will for reasons such as visual or auditory impairments, illness or vulnerability. Though, knowledge and approval of the will’s contents is not to be confused with testamentary capacity. In the case of Gill v Woodall [2010], the court identified two questions to be asked and considered when looking at knowledge and approval. The questions ask whether the testator understood the contents of the will and when it was signed, and what the effect of the will would be. Lord Neuberger stated that where a will has been professionally prepared by a solicitor, although not conclusively, there can be a very strong presumption that the will is representative of the testator’s wishes and intentions at the relative time.
If a court’s suspicion of a lack of knowledge and approval is aroused, it is for those attempting to enforce the will to seek the appropriate expert evidence and prove that the deceased fully understood the will and approved its contents.
When looking at a will that has been contested on the grounds of forgery, a handwriting expert is typically used. Such an expert would look at a considerable number of original samples of the testator’s writing and signatures comparatively with the will being contested. In doing so, they attempt to determine whether or not they believe the writing and signature on the will to be that of the testator, or whether it belongs to another individual. If an inconclusive report is given, it is unlikely that the claim will succeed.
There are many other grounds on which a will may be contested which also use expert evidence. Lack of due execution, occurring when the legal formalities for making a will are not observed, requires expert valuation and undue influence, occurring when a person coerces a testator into changing their will to unfairly benefit from it, requires evidence from people who knew the testator well. That could be medical professionals, health care providers, lawyers and even family members. It is for those challenging the will to provide the court with sufficient expert evidence to satisfy a claim of undue influence.
Although the use of expert evidence plays a crucial role in ensuring an appropriate court decision regarding the status of a will’s validity, there are still concerns and issues to be noted when considering the evidence provided, particularly in the instance of testamentary capacity. In the case of Hawes v Burgess [2013] LJ Mummery advised that the courts should be cautious when looking to accept evidence provided by an expert after the event, where that expert had never met or examined the testator at the relevant times. In a similar way to Lord Neuberger in Gill v Woodall [2010], he explained that the will had been prepared by an experienced and independent solicitor who had met the testator and believed them to be capable of understanding the will, so to question the mental capacity of the testator at that time would be to question the judgment of that solicitor. Hence, a will, as prepared in those circumstances, should only be set aside on the clearest of evidence.
Expert evidence is clearly vital for preparing a strong case to contest a will or advocate for its validity but it is important thatit is not used without heedfulness. It is not uncommon that after a will is executed, feelings of disappointment or disbelief surface among relatives. In such instances, family members and various other people who were close to the testator may be convinced of an error somewhere in the process of forming the will that explains why they did not inherit what they thought they ought to. It is of significant importance, if there is an error in the will, that it be rectified. Similarly, if there is no error and it is simply that the relatives of the testator do not agree with or are unhappy with the outcome, that they understand it to be what the testator did in fact wish for.
