Does a Previous Will Help a Probate Dispute?

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Written by Tanya Waterworth, Digital Content Writer

How Earlier Wills Can Help When Contesting a Final Will

When a family becomes involved in a will dispute after the death of a loved one, the question: ‘does a previous will help a probate dispute?‘ often comes up.  An earlier will may be able to show log-standing intentions about who should inherit, highlight last minute changes to a will which may have roused suspicions, or even whether the testator’s vulnerability or cognitive decline becomes more apparent.

We explain the role of earlier wills in contentious probate disputes, as well as who is allowed to bring forward previous wills and why an earlier will may be important if the final will is declared invalid.

Why Does an Earlier Will Matter?

In a probate dispute, the court has to determine whether the testator’s wishes are truly reflected in the final will. So, earlier wills provide a look into those wishes over time and a reference point if a new will suddenly makes an appearance. This is particularly if the testator was ill, was hospitalised or perhaps was suffering from cognitive decline. A previous will can raise red flags which may support a challenge.

The following points may be considered:

• Is there consistency: did the previous wills indicate similar intentions by the testator?
• Were there updates with reasons, such as removing beneficiaries who passed away or adding new grandchildren?
• Did intentions, which remained stable over time, suddenly undergo an unexpected change?

We recently analysed anonymised enquiry data relating to contentious probate enquiries over a three-month period. The strongest pattern we identified was our callers describing a significant change in the will from what they believed the deceased intended. In these cases, having access to earlier wills may be helpful in establishing the testator’s intent. although it doesn’t on it’s own, prove the final will is invalid. 

Who Might Have an Interest in a Previous Will?

In England and Wales, you may have legal standing to challenge a will, including using a previous will to support your challenge if you are:

• A beneficiary named in an earlier will
• A beneficiary name in the disputed will
• A relative who would inherit under intestacy rules
• If you were financially dependent on the testator
• An executor appointed in a previous will

How Earlier Wills Can Highlight Sudden Changes

If earlier wills reveal a consistency of the deceased’s wishes and the final will is considerably different, this type of change may be included to show grounds such as undue influence or lack of capacity.

Here are some common unexpected or sudden changes which may raise red flags:

New unexpected beneficiaries

This may include a carer, neighbour or an acquaintance who’s suddenly named as a primary beneficiary despite having no prior involvement with the deceased.

Example: An earlier will left the estate equally between the deceased’s two children. However, in a later will made shortly before death, one child was removed and most of the estate was left to a neighbour who had become closely involved in the deceased’s day-to-day life. The change would not, by itself, prove undue influence, but the circumstances surrounding the new beneficiary could warrant investigation.

Long-standing beneficiaries

Beneficiaries removed from the final will, who are typically spouses, children or close relatives suddenly no longer in the will – but there’s no explanation as to why.

Example: A woman’s previous three wills left her estate equally between her two daughters. Her final will, made shortly before her death, left the entire estate to one daughter and made no provision for the other. If there was no obvious explanation for the change, the earlier wills could provide useful evidence when investigating why her wishes appeared to have changed.

Unusual or large gifts

Such gifts being left to one person, but there is a lifetime patter of equal distribution in earlier wills.

Example: A man had consistently divided his estate equally between his four children in earlier wills. His final will instead left his house, which represented most of his wealth, to one child while the remaining children received much smaller gifts. The earlier wills could help establish whether this was a deliberate change in his wishes or whether there were circumstances surrounding the final will that required more investigation.

Changes made during illness or vulnerability

These may carry more weight if the testator had relied on others so was susceptible or suffered from illness or some form of cognitive decline.

Example: An elderly woman had consistently left her estate between her children in earlier wills. After becoming seriously ill and increasingly dependent on one person for care and day-to-day support, she made a new will leaving most of her estate to that person. The timing and circumstances of the change would not automatically establish undue influence or lack of testamentary capacity, but they may be relevant when assessing the validity of the final will.

DIY Wills or home-made wills

Especially, if these were made shortly before death. These may well contain errors or have not been properly signed or witnessed.

Example: A deceased person had previously used a solicitor to prepare their wills. Shortly before death, they made a home-made will which considerably changed who would inherit. The document contained unclear wording and questions arose about whether it had been correctly signed and witnessed. The earlier solicitor-drafted will could therefore become important if the validity of the later will was challenged.

Will Multiple Earlier Wills Strengthen Will Challenge?

While even one previous will may indicate an unusual change, multiple previous wills provide even stronger evidence as they reveal the testator’s decision-making over a period of time.

When it comes to probate disputes in England and Wales, behavioural patterns and medical context are considered. Therefore, potential differences in wills may include:

Language, tone and structure: while previous wills may be professionally drafted and clear in intent, a final will may show uncharacteristic phrasing, confusion or errors.

Beneficiary changes: if beneficiaries remain the same over previous wills, especially with equal distribution among children and this changes dramatically.

Proper planning: earlier wills may indicate proper, careful estate planning by the deceased which is no longer apparent in the final will and instead is inconsistent or unusually simple.

Improper execution: which may include rushed signing or incorrect witnessing in the final will compared to proper execution of these processes in previous wills.

Why It Matters When a Previous Will Replaced an Invalid Final Will

There’s a strict legal process to be followed if the final will is declared invalid:

• The most valid previous will takes effect.
• If there’s no earlier valid will, intestacy rules will apply.

Therefore, locating earlier wills which can be shown to be valid is an important step as it will change the distribution of the estate, which may have a substantial impact because an earlier will may:

• Include unmarried partners or stepchildren who would receive nothing under intestacy rules.
• Distribute assets more equally among siblings.
• Appoint executors who have a better understanding of the estate.

Should You Speak to a Contentious Probate Solicitor?

Contesting a will in England and Wales is generally complex, so having a solicitor experienced in contentious probate cases on your side can make a difference to the outcome.

Here are some advantages a probate solicitor can provide:

1. Analysis of earlier wills: your solicitor can identify suspicious errors, drafting errors or inconsistencies which may not be obvious to the family.

2. Access to experts: this may include medical and capacity if cognitive decline or vulnerability are part of the challenge.

3. Gathering evidence: your solicitor has experience in gathering required evidence such as GP records, witness statements, solicitor notes or other documents which can support your case.

4. Executor resistance: if an executor refuses to share documents, your solicitor can assist in getting an executor to comply.

5. Good negotiation skills: many cases settle without having to go to court and your solicitor is experienced in negotiating and presenting evidence to settle the dispute.

We partner with experienced contentious probate solicitors who offer a free, initial consultation to assess your case.

FAQs: Evidence to Gather for a Probate Dispute Involving Previous Wills

It’s advisable to raise a probate dispute as early as possible while evidence remains fresh and accessible. Your solicitor can help you to gather the relevant documents, but if possible, you can get started on obtaining evidence.

What documents should be gathered first?

Collect all versions of the will, including solicitor notes and drafts if possible. Solicitor files are important as they should contain instructions, explanation of changes and capacity assessments.

Do medical records matter?

Yes, especially of cognitive decline or dependence on one person has come under scrutiny. Gather GP notes, hospital records and memory clinic assessments if possible.

Should I gather witness statements?

Yes if possible as statements from carers, friends, neighbours or family members can help to show the circumstances around the deceased’s life. This may include whether there was possible pressure or confusion.

Do financial records help?

Bank statements may reveal any unusual payments, sudden withdrawals or any form of financial control by a new beneficiary.

Can I use emails and messages?

Yes as these communications may show confusions, coercion or a sudden influence, this may also include social media.

How We Can Help

Earlier wills have the potential to establish the testator’s long-standing intentions and any unexpected last-minute changes. An earlier valid will is also important if the final will is declared invalid.

We work with contentious probate lawyers who offer a free consultation, as well as a range of fee structures, including ‘No Win, No Fee’ for certain cases along with other flexible funding, so speak to our team to get started.

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