Why Are Witness Statements Important in Will Disputes?

About Our Legal Expert: This content is produced with oversight by Michael Jefferies, Managing Director who has more than 30 years’ legal experience.

Written by Tanya Waterworth, Digital Content Writer

What Did the Deceased Intend When Making Their Will?

Witness statements in will disputes help to establish the deceased’s intention, explain circumstances around the execution of the will and may be able to shed light on key issues such as questions regarding testamentary capacity, lack of knowledge or approval or even in allegations of fraud. If a will is being contested, the court needs to determine what really happened when the deceased made or signed the will. Essentially because the person at the centre of the dispute is no longer alive to explain what their intentions were or to clarify why they made certain decisions. Witness statement may be able to provide factual evidence which helps the court decide whether a will should stand or be set aside.

We explain below why witness statements can be important in will disputes, how the courts assess their reliability, and the different weight given to independent evidence, self-serving accounts or simply recollections based on memory.

What Is a Witness Statement in a Will Dispute?

A witness statement is a written account of events provided by someone with relevant knowledge regarding the circumstances surrounding a disputed will. Generally, this type of statement will set out what the witness, saw, heard or experienced and should focus on facts rather than opinions wherever possible. Such statements often help to reconstruct events after the death of a testator.

Typically, a witness may be a:

• Family member
• Friend of the deceased
• Professional will writer
• Solicitor
• Doctor
• An attesting witness to the will
• Carer or support worker
• Individual who had direct involvement in relevant events

Why Witness Statements Matter in Will Disputes

Will disputes frequently involve allegations relating to private conversations and personal relationships. There may be minimal factual material to help establish what actually happened and so witness statements may help bridge the gap by:

• Explaining the deceased’s intentions
• Providing context for decisions made in the will
• Identifying who was involved in the will-making process
• Describing the deceased’s mental state
• Clarifying family dynamics
• Establishing timelines and events
• Addressing allegations made by the parties

Proving the Deceased’s Intentions

One of the most common issues in probate litigation is understanding what the deceased intended when making their will. Family members are often surprised by the contents of a will. For example: children may have been excluded from the will; long-standing beneficiaries may receive less than expected or a new partner may inherit the majority of the estate.

When disputes arise, a witness may be able to provide evidence that the deceased:

• Repeatedly expressed a wish to leave assets to a particular beneficiary.
• Discussed changing their will following a family dispute.
• Wished to reward a carer who provided significant support.
• Deliberately excluded certain relatives for specific reasons.

Witness Statements and Allegations of Undue Influence

Undue influence is one of the most serious allegations that can arise in a will dispute and usually involves an allegation that someone pressured or coerced the deceased into making a will that did not reflect their true intentions. However, direct evidence of undue influence is often difficult to obtain because such conduct usually takes place behind closed doors. In such a claim, evidence may include observations that:

• The deceased appeared fearful of a particular individual.
• Someone controlled access to the deceased.
• The deceased became isolated from family members.
• A beneficiary insisted on attending meetings relating to the will.
• The deceased expressed concerns about pressure being placed upon them.

On the other hand, witness evidence may undermine allegations of undue influence by showing that the deceased acted freely and independently when making decisions. Solicitors, will writers and independent witnesses often play an important role because they can provide evidence about whether the deceased appeared relaxed, informed and capable of expressing their wishes.

Establishing Knowledge and Approval

A valid will requires the testator to understand and approve its contents. Where suspicious circumstances exist, a disappointed beneficiary may claim that the deceased did not know or approve what was contained within the will. We have seen that this type of challenge frequently arises where:

• The deceased was elderly or vulnerable.
• A beneficiary was involved in preparing the will.
• The will contains unexpected provisions.
• The deceased suffered from cognitive impairment.

Witness statements may help establish whether the deceased:

• Read the will before signing it.
• Had the contents explained to them.
• Asked questions about specific provisions.
• Confirmed that the document reflected their wishes.

Evidence from the solicitor who prepared the will is often particularly persuasive because it may demonstrate the steps taken to ensure the deceased understood the document before signing it.

The Importance of Independent Witnesses

Not all witness statements carry the same weight. And courts generally place value on evidence given by genuinely independent witnesses who have no financial interest in the outcome of the case as they will typically have less motivation to exaggerate or distort events. Such witnesses may include:

• Solicitors
• Doctors
• Professional carers
• Accountants
• Attesting witnesses
• Independent friends or neighbours

An independent witness typically has less motivation to exaggerate or distort events.

Their evidence can therefore be highly influential when the court evaluates conflicting accounts.

How Courts View Self-Serving Witness Statements

Courts recognise that parties involved in inheritance disputes may have a personal interest in the outcome and such witness statements which appear to be self-serving are very carefully assessed. A self-serving statement is one that advances the witness’s own personal or financial interests. So, courts will tend to consider whether:

• The account is consistent with other evidence
• Contemporaneous documents support the statement
• The witness’s version of events has changed over time
• There is an obvious personal motive

Top tip: witness statements are often most effective when they are backed by documentary evidence such as letters, emails, attendance notes, medical records or previous wills.

How Reliable Is Human Memory?

Courts in England and Wales recognise that memory can be unreliable, particularly when a dispute concerns events that occurred many years earlier. In fact, people may genuinely believe their recollection is accurate while recalling events incorrectly.

This is because recollection is affected by numerous factors, for example:

• The passage of time
• Subsequent conversations
• Exposure to documents
• Personal beliefs
• Emotional involvement

For this reason, courts frequently place considerable weight on contemporaneous records created at the time events occurred as these are regarded as a more reliable record. Such records may include:

Examples include:

• Solicitors’ attendance notes
• Medical records
• Letters
• Emails
• Text messages
• File notes

How the Court Evaluates Witness Evidence

In conclusion, the court does not simply accept a witness statement at face value and the overall reliability of the evidence will be viewed by considering the following factors:

• The witness’s independence
• Consistency with documentary evidence
• Internal consistency within the statement
• Accuracy of recollection
• Plausibility of the account
• Conduct of the witness under cross-examination

How We Can Help

Witness statements play a crucial role in will disputes because they help the court establish the facts surrounding the preparation, execution and contents of a will. They can provide valuable insight into the deceased’s intentions, support or challenge allegations of undue influence, and assist in determining whether the deceased knew and approved the contents of the document. It’s worth being aware that there is greater reliance placed on independent witnesses and factual records than recollection solely based on memory or self-serving accounts.

If you are involved in a will dispute, we partner with a panel of contentious probate solicitors who offer a free, initial consultation.  They offer a range of fee structures, including ‘No Win, No Fee’ agreements, along with other flexible funding. If you need some help today, get in touch with us now on 0330 818 0351 or complete our online contact form.