Elderly person signing their will

Last year’s case of Copley v Winter [2023] EWHC 1712 (Ch) acts as a helpful reminder of the evidential hurdles that must be surmounted when challenging the validity of a will due to a lack of capacity and undue influence of the Testator (person making the will), even in the context of a Testator receiving palliative care.

To be valid, a will must comply with the requirements set out in the Wills Act 1837. They must also have the requisite testamentary capacity.

Equally, the testator’s will must be a reflection of what they wished. If it is procured by undue influence, being pressure that goes beyond simple persuasion, the pressure applied must cause the Testator to succumb, and cloud their free judgment when making decisions about their will. The onus of proving undue influence is a high one, which means that in practice many claims of this nature fail.

Where a claim is successfully brought in relation to either of these situations (or a number of others) the Court will declare that the final will is invalid, and an earlier will be deemed as the last valid will. In cases where there is no previous will, the Intestacy Rules will apply and determine how the Deceased’s estate is left.

With an aging population, and wills frequently being executed in the later period of a person’s life, this is perhaps one of the reasons behind the increasing number of claims being brought to challenge the validity of a will on the basis that the testator has lost capacity. Equally, there appears to be an increasing number of claims brought on the basis of undue influence.

In Copley v Winter, two arguments were put forwards:

  1. that the Testator lacked capacity, as they had been receiving Oramoph (a morphine based medicine) in and around the time the will was executed. It was suggested that this could cause euphoria or sleepiness, and consequentially a lack of capacity to execute a will; and
  2. that the Testator had been unduly influenced to change her will.

The Court heard evidence in relation to both points and handed down judgment accordingly:

  1. the time and dose of the Oramorph should not have caused any of the effects advanced. The solicitor who was instructed to write the will took a very detailed note of the Testator’s wishes for her estate and instructions, and recorded her physical appearance and candour as showing no signs of confusion or memory loss. This was key evidence in the case which supported the validity of the will; and
  2. there was insufficient evidence available to rebut the very high burden of proving that the testator had been unduly influenced.

As such, the last will was declared valid.

This case yet again demonstrates that there are significant evidential burdens placed on a Claimant in challenging the validity of a will for reasons of undue influence, and shows the importance and weight of contemporaneous attendance notes taken by the Will writer for reasons of rebutting any claims for a lack of capacity.

At Stephens Scown as a team we have a number of live cases involving both questions of testamentary capacity and advising claimants and defendants on undue influence claims.