Change of will in later life – will it be valid? [Abdelnoor & Anor v Barker & Ors [2022] EWHC 1468 (Ch)]

This case concerns the validity of a will dated 26 January 2018 (‘’the 2018 Will’’). The claimants were two of the four children of the deceased and were beneficiaries together with sixteen others. They began proceedings saying that the 2018 Will was valid. The defendant was one of the Deceased’s eleven grandchildren who benefitted under the 2018 Will but he disputed the validity of this will on two grounds, lack of knowledge and approval and undue influence. He believed that the Deceased’s previous will, which he had made on 14 February 2012 (‘’ the 2012 Will’’), was the valid will.

The 2012 Will

Under this will the Deceased’s residuary estate was to be divided as follows, 20% to each of her 3 surviving children, 10% to the defendant and 10% to the defendant’s sister. With the remaining 20% divided equally between the eleven grandchildren.

Following the making of the 2012 Will the Deceased became increasingly physically frail. She suffered from recurrent urinary tract infections (UTIs) which left her very confused. Her UTIs were treated with antibiotics. Over the years she began to suffer with more health issues and had to have a 24-hour carer. On one occasion when she was suffering from a UTI and was confused she told her carer that the defendant was not related to her.

In 2018 the deceased decided that she wanted to make changes to her will therefore her son telephoned a solicitor on her behalf asking them to take instructions in order for her to revise the 2012 Will.

The 2018 Will

At the will drafting meeting the Deceased explained to the solicitor that she wished to treat all of her grandchildren the same and gave the solicitor a card setting out her wishes which were for her residuary estate to now be divided as follows, 25% to each of her 3 surviving children and the remaining 25% to be divided equally between the eleven grandchildren.

The deceased confirmed to the solicitor that her son had written the card as she was unable to do this for herself however those were her wishes. The solicitor explained to the deceased that the defendant and his sister would now receive a smaller share and would now only receive a share from the grandchildren ‘pot’.

Following the meeting the solicitor wrote to the deceased setting out the effect the proposed changes would have on the distribution of her residuary estate as she thought that the deceased appeared very confused during the meeting. The solicitor’s notes stated that the Deceased was not initially confused but as the rectifications to the 2012 Will were explored, she grew more confused.

Two months after sending the letter to the deceased, the solicitor returned to the deceased’s house to discuss the provisions of the new will, before doing so she had asked the son who had written the note setting out how the residue should be divided to leave the room. The solicitor read out the provisions of the will and again explained the effect the proposed changes would have to the distribution of the deceased’s estate. The deceased then confirmed that those were her wishes.

The Claims

The defendant initially sought to raise a challenge to the validity of the 2018 Will based on the deceased’s capacity. However, at the time of the making the 2018 Will there were no issues with regards to her capacity. Although it was determined that the UTIs had led to periods of severe confusion, they appeared to be successfully treated with antibiotics.

The grounds for challenging the 2018 Will were subsequently confined to lack of knowledge and approval and undue influence.

Firstly, the defendant attempted to challenge the 2018 Will on the basis that the deceased did not know of or approve its contents. For a will to be valid the testator or testatrix must have knowledge of the will and approve its content. If a will is correctly executed, then it is presumed that the testator or testatrix had the required knowledge and approval of its terms. Here, the 2018 Will was prepared by a solicitor and read out to the deceased which raised a very strong presumption that the deceased had known of and approved its contents, which the defendant could not defeat.

The defendant also attempted to challenge the 2018 Will on the grounds of undue influence, i.e. that the deceased was coerced into changing their will. Here, the defendant alleged that the deceased’s son, who wrote the note setting out how the residuary estate was to be divided had put undue pressure on the deceased to make her reduce his share.

The court held that there was no evidence to show that the deceased’s son exercised his power to overbear the deceased’s will by preparing a handwritten note for the solicitor. It concluded that he simply prepared the note in order to help his frail mother and so this ground of challenge also failed. 

This case demonstrates how difficult it is to challenge the validity of a will. Just because an individual makes amendments to their will close to their death or when they are physically and / or mentally more frail than they have previously been does not mean that there was necessarily any wrongdoing or that it gives a reason why the resulting will should not be valid.