A recent English court case considered some of the common issues which occur both north and south of the Border when challenging the validity of a Will. The case in question was ultimately unsuccessful, which reflects the difficulty involved in overturning an otherwise valid Will.
The case, Rea v Rea, considered a dispute over the validity of the late Mrs Rea's Will after she died in July 2016.
The facts of the case
The testator Mrs Rea was an Italian native who had moved to the UK in the 1960s for work opportunities and had learned to speak English after moving to the UK by attending night classes. Mrs Rea had four children – Remo, Nino, Rita and David. From 2009 – 2015, Rita was Mrs Rea's primary carer. The other three children had limited involvement with their mother during this period.
In 2015, the testator signed a new Will which directed her executors to make over the house to Rita. Her previous Will of 1986 directed that her estate was to be shared equally between her four children.
Challenging the validity of a Will
Upon Mrs Rea's death, Nino, Remo and David challenged the validity of their late mother's 2015 Will. They argued the 2015 Will was invalid for the following reasons:
- Their mother lacked capacity
- She lacked understanding of the terms of the Will due to her native language
- Rita had exercised undue influence of their mother
- Rita had practised a fraudulent calumny on their mother
Let's look at each of these points in turn and how these issues would be considered in Scotland.
It is the Solicitor taking the instructions who determines whether or not the testator has capacity. When taking Will instructions from clients, solicitors ask questions to ascertain whether their client understands the terms of the Will and takes detailed notes of all that is said. Where there is doubt regarding a client's capacity, a medical opinion can be sought.
In this case, the court relied on the meeting notes taken by the solicitor who prepared the testator's Will and the testimony of the doctor who assessed the testator at the time of signing. The court was of view that the testator had sufficient capacity.
Lack of understanding
Nino, Remo and David argued that Mrs Rea had a limited grasp of the English language. This argument was not successful as in the court's view they had failed to provide sufficient evidence of this.
Similarly in Scotland, the evidential burden rests on those challenging the Will. It would not be enough to simply state that the testator did not understand. You would need to lead evidence which demonstrates that position.
Undue influence describes the situation where one person abuses their power over another person to ensure that the Will is prepared a certain way. The person will be in a position of trust (i.e. a carer) and will often do so to their own advantage. To prove undue influence there must be evidence of coercion.
In Scotland, actions of this nature are not common given the difficulty in evidencing such improper action being taken.
Fraudulent calumny is an English concept which describes the situation where a person poisons the mind of the testator against another person by making false representations about them.
The court was content that the reason Mrs Rea wished Rita to receive the house was in recognition of the care she had provided to her over the years.
Similarly, evidence of fraud can be used as grounds to challenge a Will in Scotland. To challenge a Will on this basis, you must be able to demonstrate to the court that the testator was deceived into acting in a way that they would not have otherwise acted.
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