Succession: Fraud and Undue Influence in wills

Here I have had a go at answering a typical LLB Law exam question for Succession Law. I have broken down the answer into clear paragraphs which make it easier for the examiner to understand your argument. I hope you find it helpful!

“Fraud and undue influence in the law of wills make it easy for the unscrupulous to take advantage of the old and frail and to harm the interests of genuine beneficiaries.”

Critically evaluate this view.

S.9 Wills Act 1837 sets out certain formalities which must be met in order for a will to be valid.

The purpose of s.9 is to regulate the creation of wills, impress on the testator the importance of his actions, and prevent against possible fraud.

Additionally, various tests in relation to the capacity of the testator have arisen, making it easier to ascertain whether the will should be declared void on grounds of capacity.

Banks v Goodfellow is the leading authority and remains good law following the enactment of the Mental Capacity Act 2005. It sets out that the testator must understand the effect of his wishes being carried out, the extent of the property he is disposing of, and the nature of the claims on him.

This may be applied alongside the Mental Capacity Act 2005, for which the definition of capacity, found under s.2, is a helpful tool.

Parker v Felgate is another useful authority, which sets out when a testator needs to have testamentary capacity. He must have capacity at the time that the will is drafted or instructions are given, the will must then be prepared as directed, the testator must remember his instructions and believe they were followed, and there must be no suspicious circumstances.

Unfortunately despite these precautions, it is still possible for fraudulent behaviour to take place, although stating that it’s ‘easy’ is perhaps taking the issue a little too far.

However, more can always be done to ensure that the risk of fraud and undue influence are kept to a minimum; Borkowski’s journal article provides helpful insight here.

One idea for reform involves implementing a minimum age limit on witnesses to the will. At present there is no limit which means that an infant could potentially be a witness. This could be problematic where the authenticity of the will is called into question and witnesses are required to give evidence that the will was made in circumstances that comply with s.9. Although cases such as Wilson have found a 14 year old witness acceptable, due to his level of maturity and understanding, it would be most preferable to ensure an age limit of 18 years was imposed, otherwise the courts are operating on a slippery slope.

Secondly, at present the number of witnesses to a will is two. It has been argued that this is simply too convenient as the testator may ‘ask the couple next door’ to witness the will. Requiring three witnesses would make the task of finding witnesses slightly more cumbersome, thus impressing on the testator the importance and significance of the task. Borkowski does recognise that of course if three, why not four or five etc, however, the line must be drawn somewhere and requiring three witnesses is sufficient to fulfil the purpose.

Thirdly, the requirement for the testator to be present when the witnesses sign the will is currently insufficient. A string of case law has demonstrated that current law allows scope for potential fraud, most notably Casson v Dade in which the courts said it was enough that the testator could have looked if she’d wanted. In this case the testatrix was actually outside her solicitor’s office in her carriage, however, had she turned her head to glance through the window, she may have been able to see the witnesses signing. The evidence suggested that in fact she had chosen not to look, but this was immaterial. The provision need not require evidence that the testator had been physically present and chosen to look; it would be sufficient to work from the presumption that the testator had seen the witnesses sign unless it could be proved otherwise that he had not.

Finally, allowing another to sign on behalf of the testator is somewhat superfluous as cases such as In the Goods of Kieran (2 letters) and In the Goods of Flinn (thumb print) have demonstrated that a mere mark is sufficient as a signature. Borkowski states that the reasoning behind allowing this provision was based on instances in which the testator was illiterate, however s.9 does not expressly state this which technically means that a perfectly literate and competent testator could direct another to sign his will. In order to prevent risk of fraud, it would be wise for s.9 to specify that another may only sign on behalf of the testator where he is unable due to illness or disability.

Ultimately s.9 Wills Act 1837 does an important and thorough job in regulating the practice of will drafting, however, there is still room for improvement. It is submitted that making some of the changes suggested above would reduce the risk of fraud and undue influence significantly.