Challenging a Will and Contentious Probate

Jersey’s Norman customary law origins mean that certain traditions associated with feudal societies survive to this day. A good example of that feudal tradition is the limit on testamentary freedom. In other words, a testator (a person making a will), is unable to dispose of their property (both immovable and movable) entirely as they wish. More accurately, they may dispose of their property as they wish, but insofar as the will(s) made diverge from the laws on testamentary freedom, their will is open to challenge by any heir (a person capable of inheriting upon intestate succession; when no will exists). This is sometimes known as “forced heirship”.

There are therefore three key ways in which a will can be challenged in Jersey:

• For failing to comply with the required formalities;
• For failing to make adequate provision in accordance with the testamentary requirements; and
• For being imputable for some other reason such as lack of capacity.

In general, where a will is successfully challenged, it is set aside and the former will takes effect, or if no previous will was made, then the succession proceeds on the basis of an intestate succession (and general rules of heirship apply).

Formalities describe the formal steps which a particular type of will must be made under. For example, a will of immovables must be signed by the testator and be witnessed by at least two people who meet certain criteria. These are normally simple challenges, for the deficiencies that ordinarily appear on the face of the will. However, we have seen instances where considerable work was needed to be undertaken in order to establish that a witness to a will did not hold an office which qualified for the purpose of the formality requirements. If there is doubt as to the authenticity of the testator’s signature a handwriting expert may be required.

The limits on the freedom of testamentary disposal require that persons occupying certain relative roles to the testator receive certain proportions of the testator’s assets. A good example is the so-called doctrine of legitimé. This principle provides that a spouse of a deceased must receive a third of the movable estate of the testator and the children as a whole must receive another third of the estate. There is therefore only a third of the testator’s movable estate which is freely disposable (sometimes called the “disposable third”). As long as the spouse and children each receive at least a third of the movable estate, it does not matter (in most circumstances) if one receives more than a third. There are other limits, such a douaire (an approximation for “dower”) within the context of a will of immovable property. Again, such challenges are normally identifiable once an executor has taken their account of the assets and it is known or estimated what value the (movable) estate has.

Broadly speaking, a will must be made by a person who has capacity to do so (i.e. they are capable of understanding the nature and effect of making the will), and which capacity is freely exercised. In practice, this means that minors and those who do not understand adequately what they are doing are unable to make wills. An area which generates a lot of enquiries for local law firms is where the capacity of the testator is in doubt. Often this will be because a child or spouse suspects that the testator was suffering from some form of mental illness at the time the will was made, or that it is suspected that the testator was influenced, coerced, or in some way threatened into making a will which he or she would not have made had they acted truly independently.

This is the most difficult type of challenge. There is rarely adequate evidence to support a challenge as, had there been such evidence, it is highly likely that the will would never have been made in the first place as the lawyer drafting the will and arranging for its signing would likely have refused to act in accordance with instructions, or otherwise recorded their concerns in such a way as to be readily discovered upon the death of the testator. It is therefore normally inherently difficult to achieve any sort of certainty as to the chances of success of such a challenge.

Heirs may be able to obtain the deceased’s medical records, and consult the person who drafted the will, but normally any evidence that would have been created and is uncovered after the death of the deceased is likely to confirm capacity rather than support a suspicion of lack of capacity.

It is sometimes alleged by upset heirs that the testator was coerced into making a will which unduly prefers one heir or even someone totally independent of the family, such as a carer or friend. Such challenges are very difficult as there is unlikely to be any evidence showing that the testator was threatened or exploited in a way which meant that the will they made could be said to have not reflected their wishes. Further and to succeed on such a claim, the aggrieved party must show that the testator was coerced, against his or her will, to make a will in terms with which they did not agree and this is a high hurdle particularly where a local advocate or lawyer may have been involved in the drafting of the will and / or the provision of advice to the testator.

We at Sinels have wide experience in challenging wills and probate. Contact Advocate Robin Leeuwenburg and Ms Catia Tavares if you think that you might benefit from advice.