Challenging a Will

Disappointed relatives’ challenging an ‘unfair’ will is rarely successful. However the recent High Court case of Turner v Phythian & Anor demonstrates how a seemingly valid Will can be overturned.

The elderly, Mrs Iris Wilson, died on 6th October 2010, leaving the entirety of her ‘large’ estate to Mr Richard Phythian and his wife. Some of her family, having been cut out of the will challenged the validity of the will.

Generally wills are challenged on three grounds:

1.      Lack of proper execution

2.      Lack of the deceased’s mental capacity

3.      Lack of the deceased’s knowledge or approval of the contents of the will

In this case the first ground was dismissed due to a deficiency in evidence.

With regards to the second ground, the court found ‘ample evidence to raise real doubt about Iris’ capacity at the time she made the Will.’ When the claimant succeeds in raising doubt, the burden of proof shifts to the party seeking to defend the validity of the will. Unfortunately for Mr Phythian he was unable to demonstrate that Iris enjoyed the necessary mental capacity. Particularly as there was evidence suggesting that since 2010 there had been real concerns about Iris’ mental health.

As a result of the judge finding in favour of the second ground the court found that Isis could not have known or approved the contents of her will (however this is not always the case). The most significant factor in this case was that it was Mr Phythian who drew up the will, making him and his wife the exclusive beneficiaries. Another detail that counted against him he was that in a previous will he prepared for Iris’ sister, he was left a valuable bequest of shares.

The judgement demonstrated that, whilst it is rare to successfully challenge wills, it can be done where the evidence to support the claim is strong.

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