In cases involving the validity of a will, it’s perhaps obvious to say that the person bringing the claim should only sue if they would be better off as a result of the will being found not to be valid. Usually that means that there is a more favourable will still in existence, pre-dating the will in dispute. Sometimes there is no previous will, and an invalid will would result in an intestacy situation.

What’s tough, is where there are two wills that need to be overturned before you get to one that’s better for you. That’s what’s happened in a recent case….

The Daily Mail reported a long running will dispute, on 10th November 2022, which hasn’t even got to trial yet. Unsurprisingly there are substantial sums of money in dispute. Adam Scott claims his father Richard Scott, who died in June 2018, cut him out of his will dated December 2016.

Richard Scott married his long-term partner, Jennifer Scott in 2016. As a matter of law, any will he had made before would have been revoked by the marriage. Within months, 3 wills had been made by Richard, one in May 2016, one in September 2016 and another in December 2016. The last 2 wills excluded Richard from a share of his father’s estate, valued at £5m.

Although the Mail’s report doesn’t say as much, the May 2016 will must make provision for Richard. He is challenging the validity of the September and December wills on the grounds that his father:

• Lacked testamentary capacity (the mental capacity to make a valid will) and/or
• Lack of ‘knowledge and approval’ of the wills

It is reported that Richard was diagnosed with a cerebral disease in 2011 and that over the years, his mental and physical health declined steadily and at times rapidly.

The difficulty for Adam Scott will be in proving his argument that his father was perfectly ok to make a will in May 2016, but not by September –  December 2016. If the case goes to trial and the December will is found to be valid, Adam loses his case. If the December will is found to be invalid but the September one is valid, Adam loses his case. So it is a high risk case for him.

However, Adam is also putting forward a separate but related claim based on the legal principle of ‘proprietary estoppel’. This is a classic farming family argument; Adam says that he worked on his father’s farm from the age of 9 and was promised that it would all be his one day. He claims that he relied on this promise, which was repeatedly made to him by his father, by working on the farm for 40 years.

Richard’s widow Jennifer denies her stepson’s claim, says there were good reasons for Richard falling out with his son and that Adam had been barred from the farm after trying to have his father sectioned.   The trial is due to go ahead in 2024.

Will disputes like this are hugely expensive and it is difficult to predict their outcome, as each case depends on the facts that are unique to the family in question. It is fair to say however, that, absent compelling evidence, courts are reluctant to overturn a will as it is the last known expression of wishes by someone who is no longer able to speak for themselves.

Whether a case is successful or not depends on good evidence gathering at the outset of the case; what evidence exists in support of the claim (eg medical records/witness statements/ the file of the solicitors who prepared the will)? What evidence is there which does not support the claim? What is the likely amount the person challenging the will would receive if they win? What will the costs of fighting a case to trial be? Is alternative dispute resolution (ADR) a viable option?

Specialist advice should always be sought in will dispute cases; for a no obligation initial assessment, please get in touch with our litigation team if you need to bring or defend a claim via our 24/7 free live chat facility on our website, our enquiry form or our free phone 0800 8 60 62 65.

Sarah Young – Director & Solicitor