Inheritance Wars: Their Father Died First — Then Grandad’s New Will Left Them £50 Each

Fred Ward had three children: Fred Junior, Terence and Susan.

In 2011 he made a will which divided his residuary estate between them: one third each.

Then Fred Junior died. He left five daughters. Under the ordinary operation of section 33 of the Wills Act 1837, those granddaughters stood to take the share their father would have received.

Then their grandfather made another will.

2011 WILL
Fred Junior — 1/3 · Terence — 1/3 · Susan — 1/3
↓ Fred Junior dies
His five daughters would take his share under section 33
↓ 2018 WILL
Terence — 50% · Susan — 50% · Five granddaughters — £50 each

The granddaughters challenged the later will. They alleged testamentary incapacity, lack of knowledge and approval, and undue influence. A specific serious allegation under the heading of fraudulent calumny was withdrawn before trial.

The family

The family

Three children — then the next generation

1. 1

   Frederick ‘Fred’ Ward

   Fred Senior died on 17 February 2020 aged 91. His wife Lillian had died in 1971.

2. 2

   Fred Junior

   Fred’s son died on 2 September 2015, leaving five daughters.

3. 3

   Terence

   Fred’s surviving son and one of the two principal beneficiaries under the 2018 will.

4. 4

   Susan

   Fred’s surviving daughter, full-time carer and the other principal beneficiary under the 2018 will.

5. 5

   Five granddaughters

   Carol, Angela, Amanda, Christine and Janet brought the probate claim.

Family line: Fred Senior → Fred Junior, Terence and Susan → Fred Junior’s five daughters.

The 2011 will

Fred made an earlier valid will on 3 August 2011. It left the residue equally between Fred Junior, Terence and Susan: one third each.

Fred Junior was alive when it was made. He died on 2 September 2015.

Section 33 of the Wills Act 1837 can operate where a gift is made to a child of the testator who dies before the testator leaving descendants. If the 2011 will had remained Fred’s final valid will, Fred Junior’s five daughters would have taken the share which would otherwise have passed to him.

DAD’S THIRD → FIVE DAUGHTERS

The 2018 will

Fred executed another will on 28 November 2018. Its principal provision left the residuary estate 50% to Terence and 50% to Susan, subject to specific gifts of chattels and pecuniary legacies of £50 to each grandchild.

For Fred Junior’s five daughters, the difference was potentially dramatic: a share of their father’s one-third interest under the earlier will, but £50 each under the later will.

Simplified visual explainer

How the inheritance changed

1. 1

   3 August 2011 — residue: Fred Junior 1/3, Terence 1/3, Susan 1/3

2. 2

   2 September 2015 — Fred Junior dies

3. 3

   Section 33 would pass his share to his five daughters if the 2011 will governed

4. 4

   2017 — draft will records the changed residuary plan

5. 5

   28 November 2018 — later will executed

6. 6

   2018 will: Terence 50%, Susan 50%, grandchildren £50 each

7. 7

   17 February 2020 — Fred dies aged 91

8. 8

   26 February 2024 — the High Court dismisses the challenge

Why did Grandad change his will?

A changed will is not inherently suspicious. People are entitled to change their minds. Family relationships, care arrangements and financial circumstances change. People die.

But when a later will substantially alters an established inheritance pattern, disappointed beneficiaries may understandably ask: why? That question is not itself a legal ground for invalidating a will. The court still needs evidence.

The challenge

The five granddaughters challenged the 2018 will on testamentary incapacity, lack of knowledge and approval, and undue influence. A specific serious allegation under the heading of fraudulent calumny was withdrawn before trial. Master Brightwell expressly said that the court reached its decision without taking that withdrawn matter into account.

Capacity

The court evaluated all the evidence. It held that the 2018 will was rational both on its face and against the family background. Fred had formed a negative view of one claimant, contact with Fred Junior’s family had become very limited, Terence remained close to him, and Susan was his full-time carer.

The medical records did not indicate permanent cognitive impairment before death. The judge found that any loss of capacity would have been transient and associated with physical illness rather than memory loss or undiagnosed dementia. Neither the solicitor nor the witness saw confusion or delirium when the will was executed.

The finding was clear: Fred had testamentary capacity when he made the 2018 will.

Read the capacity cases Banks v Goodfellow, Clitheroe v Bond, Bond v Webster and Hughes v Pritchard.

Knowledge and approval

Capacity did not end the inquiry. The court also had to be satisfied that Fred knew and approved the contents of the will.

The will was professionally prepared. The solicitor’s attendance note recorded that Fred reviewed it before execution and confirmed that he was happy with it. His central intention to leave the residue to Terence and Susan had remained unchanged for more than 18 months, from a 2017 draft through to execution in 2018.

Master Brightwell found that Fred understood the nature and effect of the dispositions and sanctioned them. He knew and approved the 2018 will. Suspicion, without sufficient evidence, was not enough.

Undue influence

Testamentary undue influence requires coercion: pressure which overbears the testator’s free judgment. Opportunity, closeness, dependence, persuasion or the fact that a beneficiary benefits significantly are not enough by themselves. The person alleging it bears the burden of proof.

The judge accepted that Fred’s frailty and social isolation made him vulnerable, and that he depended particularly on Susan as his full-time carer. But the evidence did not establish coercion. The judgment said the evidence “does not come close” to showing that the will was procured by undue influence or fraud.

See Schrader v Schrader, Rea v Rea and Dalton v Dalton.

The court’s decision

Master Brightwell found that Fred had testamentary capacity, knew and approved the 2018 will and made it as a free agent. By what the judgment described as “some considerable margin”, the will was not vitiated by undue influence or fraud.

The claim was dismissed. The grant of probate obtained by Terence and Susan on 8 September 2020 was therefore not revoked, and the 2018 will remained in place.

The dead child’s children

A parent expects to inherit. That parent dies first. The grandchildren then assume that their parent’s share will pass down to them. Sometimes it does. Sometimes the surviving grandparent changes the will.

Legally, the grandparent may be entitled to do that. Emotionally, the grandchildren may experience it as their parent’s inheritance being taken away.

That gap between legal entitlement and family expectation can be enough to start an inheritance war.

Could it have been mediated?

Mediation could not determine testamentary capacity in the authoritative way a court can. It could not compel anybody to abandon a genuinely held allegation of undue influence.

But it could have allowed the parties to explore the litigation risks of attacking the will; the strength of the professional and medical evidence; the significance of the earlier will and section 33; the emotional position of Fred Junior’s five daughters; and whether an agreed financial arrangement was possible.

The question is not whether mediation would certainly have succeeded. It is whether the family should have tested settlement before committing the estate and themselves to the full risks of probate litigation.

Related cases

• Schrader v Schrader
• Rea v Rea
• Bond v Webster
• Clitheroe v Bond
• Hughes v Pritchard
• Banks v Goodfellow
• How Not to Start an Inheritance War
• The Inheritance Wars hub

This article provides general commentary on Gowing & Ors v Ward & Anor [2024] EWHC 347 (Ch) and inheritance disputes in England and Wales. It does not constitute legal advice.