Grounds for Contesting a Will

The case of three siblings who ended up in court over their late mother’s Will emphasises the importance of professional Will writing and highlights the challenges involved in claims against estates and contesting Wills.

The Burgess family featured in the papers as two of the three siblings argued that their late mother’s £1.5 million estate should not be divided equally between them after Probate . Two sisters said that their brother, a wealthy former British Airways pilot, should get less than them as they were not as wealthy as their brother.

A reading of the Burgess case will help most people realise just how important it is to get professional legal advice when drawing up a Will. It is especially important to do so if you know that there is a chance that the Will could be challenged and a claim made against the estate.

The Burgess case

Chris Burgess was initially left £300,000 of his parents’ £1.5 million estate in their mirror Wills. The couple made Wills leaving the lion’s share of their money to their two daughters because Jim and Freda Burgess thought their two daughters needed the money more than their son did.

After former solicitor and judge, Jim Burgess died, leaving his estate to his wife, Freda, she decided to change her Will to share the estate equally between her three children.

When Freda died in 2016, aged 90, her Will left the estate equally between the three siblings. This meant that each child would get about £500,000 rather than the son, Chris getting £300,000 and the two daughters £600,000 each. The daughters challenged their late mother’s last Will and the family ended up in court.

Grounds for contesting a Will

To contest a Will you have to be able to prove that there are valid grounds to do so, for example:

• The Will maker lacked testamentary capacity; or
• The Will was not executed properly; or
• The Will maker was unduly influenced to make the Will; or
• The Will was fraudulent or forged.

In the case of Freda Burgess it was alleged that:

• At age 90 , Freda was too old and vulnerable to change her earlier Will leaving just £300,000 to her son, rather than an equal share of the estate;
• The Will was not properly executed, as one of the witnesses had not seen Mrs Burgess sign the new Will.

The High Court judge decided that Freda Burgess’s last Will was not valid because it had not been executed properly. However, the judge concluded that Freda Burgess had known her own mind at age 90 when she decided to leave her estate equally to her three children.  That meant the shredding of the first Will (that left the son about £300,000) was valid and the first Will was therefore revoked. What is more, as the second Will had not been executed properly Freda Burgess had not left a valid Will in existence at the time of her death.

Without a valid Will in place, Freda Burgess’s estate will pass in accordance with intestacy rules, meaning that the estate will pass equally to the three children.

The court result and the amount received by the three siblings would have been different if the court had ruled that Freda Burgess lacked capacity to revoke her old Will and make a new one.

The lessons from the Burgess case

What can be learnt from the Burgess case? The Burgess case emphasises a few things:

• It is vital that a Will is executed properly. A solicitor will not only draw up a Will for you but will check that it is executed properly;
• If the Will maker is elderly or frail it can be sensible to get a doctor to confirm that the Will maker has testamentary capacity to make a Will;
• If a Will maker is elderly or vulnerable it is important that they get independent legal advice on their Will;
• If a Will maker is leaving a Will that they think may be challenged it is important that they explain why that they are making the provisions in the Will. The explanation does not need to be in the Will but can be contained in a separate private letter to the executor of the Will.

For legal help with claims against estates, challenging a Will or estate planning please contact us