Contesting a Will? There may be more than one route to success

When it comes to challenging a loved one’s Will, it’s important to look at all the grounds that might be open to you – as a recent High Court case in Bristol shows.

Two brothers contesting their father’s Will had one challenge rejected by the judge whilst the alternative challenge put forward was successful.

This meant the brothers each received the one third share of the market garden business they said had always been promised to them.

The court case shows the crucial role a specialist and experienced contentious probate lawyer can play in inheritance disputes, making sure you consider all the options available to you to fight your claim and don’t put all your eggs in one basket.

What happened in this disputed Will case?

Richard and Adrian Winter challenged their father Albert’s Will after he changed it in 2015, two years before his death and more than ten years after his wife, Brenda, died.

In this Will, he left his share of the family business in Somerset to another son, Philip, and nothing to Richard and Adrian.

Richard and Adrian claimed that Albert was not legally allowed to change his Will because he and Brenda had made irrevocable mutual Wills in 2000, splitting the business between all three sons.

Philip argued that the Wills were not in fact mutual and Albert was therefore free to do what he wanted with his share of the business.

However, Richard and Adrian’s claim was rejected when the judge decided there was not enough evidence to prove the couple had indeed made mutual Wills.

Why was an alternative claim in this inheritance battle so important?

Richard and Adrian also put forward what’s known as a proprietary estoppel claim on the basis that both parents, over many years, had always promised them equal shares in the business if they committed to working for it.

Their active role in the business, said the court, was undeniably true and as a result ruled that Albert’s share in the family business should be divided equally in thirds between Richard, Adrian and Philip as their mother’s had been on her death.

If the proprietary estoppel claim had been overlooked, Richard and Adrian would have received nothing based on the mutual Wills challenge and Phillip would have inherited.

Why did the brothers’ proprietary estoppel claim succeed?

Proprietary estoppel is a legal concept that can be used to stop someone going back on a promise or assurance, however informally made, when that assurance has been relied upon by another person to their detriment.

It hinges on being able to prove the person bringing the claim had reasonable grounds for believing they would one day inherit property and because of this, and making life choices accordingly, they were left at a disadvantage.

This was clearly the case for Richard and Albert who had, from an early age, spent many years working in the market garden business.

The court also noted that Albert was considered a loyal man who kept his promises.

Why did the brothers’ mutual Wills claim fail?

Mutual Wills, unlike mirror Wills, create a legally binding contract between the couple. Neither person can change or revoke their Will without the other’s permission and after the death of the first person, the Mutual Will agreement becomes permanently irrevocable.

For Richard and Adrian, proving that their parents had made mutual Wills in 2000 was crucial as this would render Albert’s 2015 Will invalid.

However, the court decided that this wasn’t possible for a number of reasons including:

• There was no documentary evidence that the couple had intended to make mutual Wills. Often, this intention is written on the Wills or the Wills contain an agreement that the survivor’s Will can’t be changed.
• The family’s solicitor’s files did not support the claim for mutual Wills. The solicitor accepted he hadn’t asked the couple if they wanted to make mutual Wills because there was nothing to suggest they did.
• There was little evidence that Albert and Brenda had discussed mutual Wills, or indeed any Wills, with other people.

Get in touch

This case shows how important knowing all your options is when looking to contest or defend a Will.

With the number of people disputing a loved one’s Will rising fast, the help of a specialist lawyer is vital as every case needs to be looked at on an individual basis and time limits apply.

Wards Solicitors’ expert Contentious Trust and Probate team is praised by the Legal 500 Guide for 2024 with head of the team, Elizabeth Fry, who has more than two decades experience in this area of the law, highlighted as a key lawyer.

Our lawyers are members of the Association of Contentious Trusts and Probate Specialists (ACTAPS), the Society of Trust and Estate Practitioners (STEP), Solicitors for the Elderly (SFE) and the Law Society’s Probate Panel. All demand a high level of expertise and up to date knowledge from their members.