Does the testator need to have died before a beneficiary can dispute a will?

The case of Moore v Moore 2016 EWHC 2202 (Ch), which was considered by the Court of Appeal, interestingly found that a father (Roger Moore) could not change his will so as to prevent his son (Stephen Moore) receiving sole ownership of the family farming business (which was owned jointly by Roger and Stephen).

The family farm had been promised to Stephen for many years and it was held that these promises had created an interest in Stephen’s favour, over the farm, which Roger could not now stop.

The court ordered in 2016 that the farming partnership should be dissolved, with Roger’s share of the farm being transferred to Stephen for practical purposes (Roger suffers from Alzheimer’s). It was, however, ordered that Roger and his wife (Stephen’s mother) Pamela Moore should continue to occupy the farmhouse (at Stephen’s expense) and receive an income from the business of £200 per week for as long as they needed.

Pamela acting as Roger’s litigation friend appealed the 2016 judgment. At the hearing, Lord Justice Henderson ordered that there needed to be a further hearing to consider making a lump sum payment to Pamela. There was a suggestion that a payment of between £1m to £2m would be reasonable. The Court considered that Stephen’s eventual inheritance would have been subject to such reasonable provision as Roger might choose to make for Pamela both before and after his death. It found that it was Roger’s clear intention that Pamela should have access to both capital and income after his death and that she should be the sole beneficiary of non-farming assets comprised in the residuary estate. The 2016 judgment left Pamela locked into a financial relationship with her estranged son with few significant resources of her own.

The order that Roger’s share of the farmland and the partnership assets should be transferred to Stephen was upheld on the basis that Roger did not have the capacity to continue to farm during the remainder of his life and Stephen already owned half of the farm and the business and in practice had been running the farming operations for a number of years.

It is not normally possible to dispute a will before a testator has died, there is always the possibility that the testator may change their will before they die. This case was not a will dispute although it did arise because of Roger and Pamela’s decision to disinherit their estranged son. It was a case that sought to enforce a promise made to Stephen throughout his life which Stephen had relied upon to his detriment. Stephen was able to seek to enforce the promise before Roger’s death largely because of Roger’s lack of capacity and inability to continue to operate and run the farming business.