5th August 2019

Challenging a deathbed will

When Aretha Franklin died in August 2018 her family initially believed she had not made a will.  Certainly nothing had been prepared by her lawyer. It was not until months later while clearing out her home that three handwritten wills were discovered, two made in 2010 stored in a locked cabinet and one made in 2014 hidden under a pile of cushions.  Chaos ensued as nobody knew whether any of the wills were valid and therefore how much each of her sons stood to inherit.

It is an all too familiar story, as an increasing number of people make notes about who they want to get what when they die but then put off going to see a lawyer to have a professional will formally prepared.

‘Deathbed wills, hastily drawn up as someone faces imminent death, are particularly problematic and can often lead to a dispute.’  Patrick Jenkins, probate disputes lawyer explains. ‘This is because, quite naturally, relatives and friends begin to question whether their loved one really understood what they were doing and if they might have made different choices had they had more time to think things through.’

If you have recently lost someone close to you who prepared a deathbed will that you have concerns about then it is worth talking to a lawyer to find out if your concerns may be justified and, if they are, how you can go about challenging the will.

Grounds on which a deathbed will can be challenged

Like all wills, a deathbed will can be challenged in any case where you believe the person making it:

  • did not have the mental capacity to make a will, for example because they were suffering from advanced Alzheimer’s disease;
  • did not know or approve of the contents of a will presented to them for signature, because it was not read or fully explained to them;
  • agreed to make a will in certain terms because of unfair pressure applied by someone who now stands to benefit, such as a carer or a new friend; or
  • agreed to make a will excluding you or reducing your entitlement because their opinion of you had been deliberately poisoned.

A will can also be challenged where there is evidence that it has been forged, not signed or witnessed properly, or where it does not comply with certain other legal formalities.

How to resolve a dispute over a will

The first thing you need to do is clarify the basis on which to make a challenge, and what it is you are trying to achieve.  For example, do you want an earlier will making better or fairer provision for you to be recognised, or do you want the current will to stand but with a few adjustments to make it more reflective of what you believe your loved one would have wanted?

You then need to take advice on the prospect of any challenge being successful and your options for trying to reach an out of court settlement.  There are various ways in which this can be achieved, including through direct negotiation with the executor and other beneficiaries or via the use of a mediation service where you feel having an independent, objective intermediary involved might be useful.

Where there is agreement that some adjustment to the current will is justified, then it may be possible to achieve this through a deed of variation which redirects some of you loved one’s money or property.  This can also be a useful mechanism for helping to ensure that no one pays more inheritance tax than needed, which might not be something your loved one thought about in their rush to get their will completed.

Where attempts at an amicable resolution fail, then court proceedings may need to be considered. If so, you will need representation to ensure your case is presented in the best possible light and progressed as quickly as the court will allow.

The good news is that a high proportion of disputes about a will are settled out of court, particularly in cases where early legal advice has been taken from an empathetic lawyer whose approach to negotiation is collaborative and constructive.

If you need help to resolve a dispute about a will, whether as a disappointed beneficiary or estate executor, please contact Patrick Jenkins in our civil litigation team by calling 01730 268211 or emailing PXJ@macdonaldoates.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.