Challenging The Validity Of A Will – Do You Have An Interest Or Are You Just Interested?

CPR rule 57.7(1) reaffirmed the existing requirement that in order to bring a probate claim a party must have an “interest” in the estate.[1] Earlier authority[2] had established that a creditor of an estate does not have a sufficient “interest” in the estate to allow them to challenge the validity of a will. But what of a creditor of a beneficiary? At first glance the interest would appear even more remote than that of a creditor of the estate however this is an issue recently determined by the Court of Appeal.

Caselaw

In Randall v Randall [2016] EWCA Civ 494 the court was concerned with the claim of the ex-husband of a beneficiary to a will, the appellant being the ex-husband of the respondent. Financial proceedings following the parties’ divorce resulted in a settlement whereby, if the respondent were to inherit more than £100,000 from her mother, she would retain the first £100,000 and the remainder would be split equally between the appellant and the respondent. On her death, the respondent’s mother left £100,000 to the respondent and following some small legacies, left the balance of approximately £150,000 to the respondent’s children. The appellant sought to challenge the validity of the will under s. 9(b) of the Wills Act 1837 on the basis that it was not duly executed, specifically, that it did not appear that the testator intended by her signature to give effect to the will.

The preliminary issue for the court to determine was whether the appellant had sufficient interest to bring the claim. The Deputy Master of the High Court found against the appellant, determining that ‘Just as a creditor of an estate, while interested in the estate, has no interest in the estate, so in my judgment a creditor of a beneficiary of the estate has no interest in the estate, though he is possibly interested in the estate.’

The appellant appealed the decision whereupon the Master of the Rolls drew a distinction between the position of a creditor of a beneficiary of an estate and a creditor of an estate, asserting that the interest of the creditor of a beneficiary is to ensure that the beneficiary receives what is due to him or her under the will or on an intestacy; whereas the interest of a creditor of an estate is to ensure that there is due administration of the estate. Accordingly the court held that the appellant did have sufficient interest to bring the claim.

Moreover the Master of the Rolls went on to say that were there any doubt as to whether the appellant had such an interest, reliance could be placed on the overriding objective,[3] holding that justice in the general sense requires the appellant to be able to bring his probate claim to set aside the will.  The court rejected the argument that the issue could be resolved by recourse to s.21 of the Senior Courts Act 1981.

Guidance

In determining the appeal the court went on to clarify what constitutes a matter of substantive law and what is a procedural matter. The Master of the Rolls determined that whilst the determination of whether a will is valid is a matter of substantive law, the question of whether a person has a sufficient interest in an estate to be permitted to bring a probate claim to prove that a will is invalid is a procedural matter. Accordingly, when advising a party as to whether they have sufficient interest to bring a claim it is the provisions of CPR 57.7 that should be considered.

[1] Kipping and Barlow v Ash (1845) 1 Rob 270
[2] Menzies v Pulbrook and Kerr (1841) 2 Curt 846
[3] CPR 1.1