Will dispute case - Genuine mistake or intention to deceive?

Mistakes in a Will can often be costly and working out what the Deceased intended is not always easy.

This is something that the courts considered recently in the case of Burnard v Burnard & Others [2014] EWHC 340 (Ch). The case concerned the validity of share transfers allegedly carried out by the Deceased before he died. They looked at whether the wording of the Will amounted to a mistake, and whether the Deceased lacked the capacity to execute the documents. The court also considered whether the documents allegedly executed by the Deceased were a sham.

The Law

• The Judge applied settled law to interpreting the contract in this case. When interpreting a contract, the courts will consider the following when determining the intention of the parties:
• The meaning of the relevant words in light of the ordinary and natural meaning of the words;
• The overall purpose of the document;
• Any other provisions of the document;
• The facts known or assumed by the parties at the time that the document was executed;
• Common sense.

Here, on the true construction of the Will, it was decided that the reference to Properties was plainly a mistake and that there was a strong argument that there was a clerical error in naming the wrong company in the Will.

In relation to the execution of the share transfers and declaration of trust, the court declared that on the balance of probabilities, these had been validly executed and signed by the Deceased.

In order to establish that the trust was a sham, it had to be established that the intention was to give a false impression to third parties and ultimately to the court, and not to create a trust. In this case, there was no evidence to suggest that the Deceased did not intend to create a trust in this case, and so the argument was rejected.

In relation to mental capacity, what was required was that the necessary party had a general understanding of the nature of the transaction. Here, there was no suggestion that the Deceased did not understand the nature of the transaction, and so this argument also failed.

Contesting a Will

Questions in relation to validity of wills, intention of the testator and lack of capacity are often complex, and much depends on the individual facts of the case. Here at Redress Law we are experts in all sorts of contested will issues and can advise as to whether you have any potential claims, and if appropriate take the necessary steps to contest the will.