Are the numbers of will disputes rising due to wills made in lockdown?

This can be demonstrated by an article which recently appeared in The Times relating to a will which was executed in 2020 (ie during the pandemic). 

The testator had made a will (c.2000) which left his entire estate to his three children. However, during the pandemic, the testator lived in a bubble with his grandson and his grandson’s girlfriend. There were significant concerns regarding the testator’s mental health and his ability to hear properly, but notwithstanding this, the testator executed a new will which left his entire estate to his grandson (and nothing to his three children). The testator then died four months later.

Litigation subsequently ensued between his children and his estate regarding whether the will executed in 2020 was valid.

Unfortunately, this accords with our first-hand experience of challenges to wills drafted during the pandemic. 

The execution of a will is something which requires strict adherence to formalities and careful consideration of whether a testator is sufficiently capable – for instance whether they have the requisite mental capacity, or whether they are being unduly influenced by another person. The inherent risk of wills being prepared and executed “behind closed doors” during the national pandemic is that these formalities and rigorous checks may not have been properly complied with.

Since the pandemic, we have seen “lockdown wills” challenged for the following reasons:

1. Lack of formality – ie wills which aren't witnessed properly in accordance with the strict execution requirements set out within the Wills Act 1837.
2. Lack of testamentary capacity – this is the issue of whether a person has mental capacity to execute a will. There have been numerous instances of testators executing wills without any involvement of legal or medical professionals, with the consequence that this issue isn't being properly considered prior to the will execution.
3. Undue influence/coercion – a concern particularly where a solicitor isn't involved in ensuring that the testator isn't being unduly influenced or coerced by another person (as was suggested in the above case). The pandemic gave rise to a slight relaxation in the formalities required for the execution of wills to allow for wills to be witnessed electronically (by platforms such as Zoom or Teams). However, this meant that it wasn't always clear whether anybody else was in the room at the same time as the testator. This has raised significant concerns regarding whether testators were unduly influenced by the people they were shielding with.
4. Lack of knowledge and approval – when executing a will, a testator must know and approve of its contents. In the absence of having a solicitor explain the terms of the will to them (and more generally, the increase in “homemade wills” without the involvement of a solicitor), there have been a number of cases in which it has been alleged the testator didn't actually understand and approve the document they were signing.
5. Fraud/forgery – where a will is executed by somebody other than the testator (ie the signature of the testator is forged by a third party), or where somebody has poisoned the testator’s mind with the consequence of making them change their will.

Recent research has shown that the number of wills being challenged is significantly increasing, which is partly a result of what happened in the pandemic but also partly as a wider reflection of the changing society in which we live.

If you have any questions in respect of challenging a will, then please do not hesitate to contact our specialist experts in the estate, trust and will disputes team.