In the third and final part of this series, reflecting on the case of the late French actor Alain Delon, the authors examine how a legal will has been challenged, and the proper ways that challenges can be made.

The first two articles in this series (here and here, respectively), have considered how claims by Alain Delon’s adult children and (non-married) partner may have fared if they had been brought in the UK under the1975 Act. Neither claim seemed particularly promising. This final article examines whether his sons and partner would have had more success challenging the validity of his will altogether. 

The authors of this article are Samara Dutton, partner, and Harry O’Donohue, trainee solicitor, Collyer Bristow. The editors are pleased to share these insights, and invite readers to jump into the conversation. Email tom.burroughes@wealthbriefing.com

Samara Dutton


Harry O’Donohue
 

Challenge to the validity of a will

Under English law a will is invalid if any of the following are established: 
(i)    lack of testamentary capacity; 
(ii)    undue influence; 
(iii)   fraudulent calumny; 
(iv)   fraud; and 
(v)    improper execution.   

Fraud and improper execution are more black-and-white and will not be considered in any detail in this article. Lack of testamentary capacity, undue influence and fraudulent calumny, however, provide grounds of challenge which deserve consideration in the context of Delon’s estate.

Lack of testamentary capacity
In order for a will to be valid, the testator must possess the appropriate level of capacity at the time they make it. Briefly, this requires that they understand the effect of making a will, appreciate the extent of the assets that make up their estate and are capable of anticipating claims from persons who may expect to benefit from their estate. They must also not be suffering from any disorder of the mind at the relevant time.

Clearly there is scope for a challenge to Alain Delon’s will based on lack of testamentary capacity. Both Delon’s children and Hiromi Rollin have already alleged that the other attempted to take advantage of the vulnerable mental state of the French film icon in the lead up to his death.

In order to successfully invalidate the will based on this ground, the applicant first needs to raise a “real doubt” about capacity, since wills are presumed valid if they are correctly executed and comply with the requisite formalities. Therefore, the burden of proof is on the claimant in the first instance to adduce sufficient evidence to persuade the court to suspend its presumption of validity.

In Delon’s case, the five cognitive tests that he failed in a Swiss clinic between 2019 and 2022 could serve as useful evidence to excite the suspicion of the court. Whilst such tests are not determinative and vary widely in their diagnostic ability, they would nevertheless be a useful basis from which Delon’s children or Rollin could start to build a challenge to Delon’s capacity. If successful, the burden will shift to the propounder of the will (presumably his daughter, Anouchka, in Delon’s case) to establish that he had sufficient capacity. 

It should be highlighted, however, that capacity fluctuates. Consequently, it will be irrelevant that Delon lacked testamentary capacity at the time he failed the cognitive tests unless it can be proven that this was also the case at the time he executed his will.

Undue influence
In order for a will to be invalidated on the basis of undue influence, it must be shown that the testator was coerced into doing something that they did not want to. Coercion could include acts such as direct threats, intimidation or manipulation but should have the effect of impairing the testator’s free will.

In Delon’s case, the secret recording that his sons took of his daughter, Anouchka, attempting to manipulate him into believing that they were betraying him would serve as helpful evidence in any claim for the invalidation of his will brought on the basis of undue influence. That said, more evidence would need to be adduced since undue influence is a particularly tough challenge to mount. 

Relevant also to the question of whether undue influence was present in a particular scenario is the condition of the testator. For testators who are more physically or mentally frail, the level of coercion needed for undue influence to be found will be lesser than where the testator is healthy. Once again applying this to Delon’s case, it could be argued that the failed cognitive tests he took in the Swiss clinic highlighted his mental frailty and therefore that Anouchka’s actions in the secret recording are relatively more significant than they would otherwise be.

Fraudulent calumny
Fraudulent calumny is another ground on which a will can be invalidated and, like undue influence, can be particularly difficult to prove.

To invalidate a will on this basis, a claimant would have to prove that the testator has been told lies about a particular person, believed these and altered or drafted their will as a consequence of the beliefs that they now hold.

Whether Anouchka Delon had been lying to her father as opposed to coercing him would depend on the particular content of her conversation with him. However, supposing that the former turns out to be the case and should it be established that Delon believed her lies, if his decision to ultimately bequeath her the largest share of his estate was caused by his belief in these lies, a claim for the invalidation of his will based on fraudulent calumny could be considered by his sons or Hiromi Rollin. 

Effect of invalidation
Whilst a potential claimant may believe that they have much to gain in bringing a claim for the invalidation of a will, they ought to exercise caution before deciding to do so as the effect of invalidation of the will could leave them in a worse position. 

In English law, where a will is successfully invalidated, the deceased’s estate will pass according to the most recent validly executed will they made. This means that even though the deceased has chosen to revoke their previous will by creating a new one, if that new one is successfully invalidated the estate will pass according to the previous will.

Aggrieved parties must consider carefully whether a reversion to the arrangements found under any previous will would be favourable to them before attempting to challenge the current will. If there are no prior valid wills, the estate will pass according to the intestacy rules. Again, it is worth checking what the effect of those rules would be before proceedings with any challenge.  

Comment
If a family member/dependent, or their advisor, genuinely believes that a deceased’s will does not reflect their wishes then they may wish to consider bringing a claim to challenge the will. Such claims can be based on lack of testamentary capacity, undue influence, fraudulent calumny, fraud and improper execution. Caution must, however, be exercised to ensure that the effect of any successful invalidation does not leave the would-be claimant in a worse position than they would be had the will’s instructions been carried out unchallenged.