What is Testamentary Freedom?
Unlike our European counterparts such as France, Italy and Spain, England and Wales do not have forced heirship laws, meaning those who decide to leave a will have the freedom to leave assets to whom they like. This is known as testamentary freedom.
A recent case of Gowing and Others v Ward saw five grandchildren challenge their grandfather’s will. It serves as a warning to those wanting to challenge a testator’s testamentary freedom without good evidence.
Background to the case
Frederick Ward Sr (Fred) had three children, one of whom (Fred Junior) died in 2015. Fred had prepared a will in 2011 that divided his estate in three equal shares between his children. In 2018, he prepared a new will, in which his residuary estate was left in equal shares to his two surviving children.
After Fred died, the five daughters of Fred Junior brought a claim citing that the new 2018 will was invalid. They argued that Fred lacked the capacity to make this new will and that his true testamentary intention was that his residuary estate be divided into three equal shares, in line with the 2011 will, meaning that they would share one-third of the estate between them. They also argued that the 2018 will was created under undue influence from Fred’s surviving son and daughter, who were defending the claim.
The court dismissed the claim and the validity of Fred’s 2018 will was upheld. In dismissing the claim, the court found that Fred had full testamentary capacity at the time of making his 2018 will, he was aware of the contents and had approved it. There was also no significant proof that the defendants had applied any undue influence on their father when the will was created, to the effect that it changed the testamentary disposition of his estate.
What can we take from the judgment?
The court’s decision serves as an important reminder of the principle of testamentary freedom in England and Wales. It confirms that, when a will is properly executed, it will be assumed to be valid, whether or not the gifts detailed in it are deemed to be rational or reasonable. Solid evidence is required to challenge this presumption. As a result, potential claimants face a significant burden of proof to succeed in challenging a will. Without the necessary evidence, claimants risk being liable to pay very substantial sums by way of costs, if the claim is unsuccessful. It is, therefore, essential for any individual considering challenging to a will to seek legal advice on the merits of the claim beforehand.
Here to help
If you are concerned about a will, or need advice about defending a claim challenging a will, please get in touch with Kirsty Adamson in our Dispute Resolution team.
Please note, the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.
