Challenging a Will: Legal Grounds and Process

While many write their wills with the best intentions for our loved ones, situations may arise where a will needs challenging, often due to suspicions of fraud, forgery, or other concerns. Validating a deceased loved one’s last will and testament is crucial, ensuring their true intentions are honoured.

At Anthony Gold, our team, specialising in wills, trusts, and estate matters, has extensive experience in will disputes. Representing executors facing family pushback or individuals suspecting tampering, our solicitors provide support and guidance tailored to each situation.

Read on for our comprehensive guide to challenging a will, including everything you need to know about the legal process, what grounds you need to challenge a will, and how to deal with instances of contentious probate.

What are the grounds for challenging a will?

A person cannot challenge a will simply because they are unhappy with the contents. Ultimately, the testator (the person writing the will, who owns the estate), has the right to distribute their estate as they see fit, and to have their final wishes honoured by the executor of their will. However, there are some legal grounds that a person may have to challenge a will.

The grounds upon which a will can be challenged are:

1. Lack of proper formalities

A will may be challenged if legal processes and formalities, as outlined in the Wills Act 1837, are not observed. Improper execution can render a will invalid, emphasising the importance of adherence to formalities.

2. Lack of Capacity

A challenge arises if the testator lacks mental capacity during the will’s creation. Capacity requires understanding the nature of the act, appreciating the estate’s extent, and comprehending relevant claims. Proving capacity posthumously may require medical records and reports.

In order to prove the testator did have capacity, it is necessary to show that he met the test set out in the case of Banks v Goodfellow (1870), namely:

• the testator must understand the nature of his act and its effects;
• he must appreciate the extent of his estate;
• he should be able to understand and appreciate the claims which he should give effect to, and nothing should bring about a disposition that he would not have made had he been of sound mind.

3. Lack of knowledge and approval

The testator must fully understand and approve the will’s contents. Challenges may arise if the testator has impaired vision or cannot read, necessitating legally approved accommodations to demonstrate understanding.

Cases like this can demonstrate why it is beneficial to instruct contentious probate solicitors when making your will, to ensure that reasonable adjustments for disabilities or other conditions can be made and that the will is valid under UK law.

4. Fraud or undue influence

Suspecting fraud in a will warrants immediate attention and can lead to a challenge. Obvious cases, like forgery, involving copied signatures or fabricated documents, are relatively straightforward.

However, detecting coercion or abuse poses greater challenges, especially when a testator has been intimidated or forced into aligning their last will with someone else’s wishes. Undue influence, a common ground for contesting wills in cases of suspected elder abuse, is intricate to prove, often lacking witnesses, and burdened by a high standard of proof.

Dispute resolution courts scrutinise fraud allegations closely, demanding substantial evidence. To prevent potential will disputes stemming from fraudulent or coerced wills, it’s vital to act preemptively. If you suspect undue influence, especially by a family member, documenting instances before the will’s drafting is crucial. Timely reporting or raising alarms can prevent future disputes, ensuring a fair outcome for all parties involved (except for the potential fraudster, of course).

Note: Prompt action and evidence documentation are essential to protect the integrity of the testamentary process.

5. Subsequent revocation

Wills face potential invalidation if a later version is written or if there’s a subsequent marriage or civil partnership after a will has been written. Emphasising the importance of maintaining a single, up-to-date copy, multiple versions can cast doubt on each copy’s validity.

As per section 20 of the Wills Act 1837, contested Wills can be revoked by destruction, creating a later will, or entering into a subsequent marriage or civil partnership unless planned during the initial will’s creation. The testator must possess the capacity to revoke at the time the Will is destroyed, or the capacity to marry.

While these grounds apply where there is a Will, when concerns arise about the will’s creation, they won’t address situations where a valid will is perceived as unfair or in the absence of a will. In such cases, contesting a Will may be possible, allowing challenges to the estate distribution of the estate under the Inheritance Act 1975.

Determining the ‘valid’ will can be a prolonged and challenging process, contributing to the stress of families at an already difficult time. 

Any of these grounds for contesting a will can lead to contentious probate, explored further below, accompanied by some real-life examples.

What are the requirements for a will to be considered valid?

The requirements for a will to be considered valid have remained largely unchanged in the past 180 years, as stipulated in the Wills Act and subsequent amendments.  These essential formalities are as follows:

• In Writing and Signed: A will must be in writing and signed by the testator, or by another person in the presence of the testator and at the testator’s direction.
• Intention to Give Effect: It must be evident that the testator, through their signature, gives effect to the will, solidifying their genuine intent.
• Witnessed Signature: The testator’s signature, or an acknowledgement thereof, must occur in the presence of two or more witnesses present simultaneously.
• Witness Attestation: Each witness must, in the presence of the testator (but not necessarily in the presence of any other witness), either attest and sign the will or acknowledge their own signature.

Interestingly, there is no formal requirement for a will to be dated. While not obligatory, dating is recommended to avoid confusion, especially in cases where multiple wills exist, determining the most recent, and therefore the most up-to-date version.

Contesting a will when the testator has diminished capacity

One prevalent basis for contesting a will, aside from formalities of non-observance, is the contention that the testator lacked testamentary capacity. This necessitates the testator comprehending key aspects, including:

• Awareness of Will-Making: The testator must understand that they are creating a will, ensuring a conscious and informed decision-making process.
• Understanding Estate Extent: Knowledge of the full extent of the estate is imperative, enabling the testator to make informed decisions regarding its distribution.
• Comprehension of Gift Implications: The testator should grasp the implications of the gifts they are making, demonstrating a clear understanding of the impact on beneficiaries.

Where there is reason for doubt as to a testator’s capacity, there may be less scope for a challenge to the will if:

• Medical Professional Witness: A medical practitioner has witnessed the will’s signing or provided an opinion on the testator’s capacity.
• Consultation with Solicitor: Discussions with the solicitor include details of previous testamentary dispositions and reasons for changes.
• Careful Solicitor Instructions: The solicitor has diligently taken instructions from the testator in the absence of influential beneficiaries.

Beyond capacity concerns, challenging a will may also arise from:

• Lack of Knowledge or Approval: Cases where the testator has the capacity, but questions arise regarding awareness or approval of the will’s contents.
• Undue Influence or Fraud: Proving undue influence requires coercion beyond mere persuasion, while fraud involves false statements inducing favouritism.

The only other valid ground for challenging a will is revocation, occurring through destruction, preparation of a later will or codicil, or subsequent marriage or dissolution. Notably, a subsequent marriage may not revoke a will if prepared in anticipation, especially if the will includes a non-revocation clause for an expected marriage. Similar provisions apply to Civil Partnerships.

How to contest a will

Contesting a will requires a strategic approach. If you believe you have valid legal grounds for contestation, follow these steps:

• Seek Legal Advice: Initiate the process by consulting specialised contentious probate solicitors. They will assess your situation, provide legal counsel, and guide you through the complexities of making a claim.
• Understand Your Grounds: Your solicitor will meticulously review your case, elucidating the grounds for your claim. Understanding these grounds is crucial for a robust case.
• Formal Claim Submission: With a clear understanding of your case, your solicitor will assist you in formally submitting a claim to the Probate Registry Office. This formal claim, known as a ‘caveat,’ must be lodged promptly, before the will’s execution, halting the probate process and distribution of the estate.
• Dispute Resolution or Court Proceedings: Your claim will likely progress to dispute resolution, where negotiations aim to reach an agreement. In the absence of consensus among the involved parties, court proceedings may become necessary to ensure a fair decision in accordance with the law.
• Consult with Experts: If you feel you may have grounds to contest a will, you can contact a member of the wills and probate team. Or, visit our Contesting A Will service page, to learn more about what we do, and how our team can support you through this process.

How to ensure that your will cannot be contested

While writing a will, the notion of potential contests might seem remote to most testators. However, when planning your estate, it’s important to consider every possibility. Here are some steps you can take to reduce the likelihood that your will may be contested after your death:

• Draft your will meticulously, following essential steps to ensure its validity and reduce the likelihood of contentious probate: Before the official signing, carefully consider the outlined procedures, such as: that you are of sound mind, any reasonable adjustments such as the use of braille documents have been made, and the will is signed in the presence of two witnesses, who will subsequently sign it too.
• Include a no-contest clause in your will: While some view it as extreme, this clause can discourage beneficiaries from challenging the will. Certain clauses may even stipulate that a beneficiary forfeits their share of the estate if they contest. Include this clause only after seeking proper legal advice.
• Instruct a solicitor, who specialises in wills and inheritance law. They will be able to make sure that the will is comprehensive and unlikely to be contested on the grounds of its validity. If you would like legal guidance with the writing of your will, visit our Making a Will service page to find out more about how we can support you.

Contentious Probate: When wills are challenged

The choices which people make about their estates can sometimes seem surprising, hurtful, and unfair to their surviving loved ones. Generally speaking, a person is free to leave their estate as they wish and Courts are reluctant to overturn the wishes of a testator, even where the provisions made are unexpected or seem unjust. Although contesting a Will is not always easy, there are some grounds on which a Will can be challenged. This can lead to instances of what is known as contentious probate.

What is a contentious probate?

Contentious probate refers to any issues or disputes which arise following the death of an individual, and during the period of ‘probate’ – where the deceased’s estate is distributed according to their last known will and testament.

During probate, an executor – typically named by the deceased in their will, may have the responsibility of distributing the estate, and may even have been given the right to make decisions on how certain assets are distributed. This dynamic often leads to familial rifts if disagreements arise regarding the executor’s choices in distributing the estate.

Any issues, disputes, or challenges made during the probate process following the death of a loved one, can be described as ‘contentious probate’.

What is the difference between challenging a will, and contentious probate?

While contentious probate can result in a will being challenged or contested, the two terms are not synonymous. For instance, contentious probate may not result in the contents or circumstances of a will being challenged but rather contesting decisions made by an executor on behalf of the deceased. Although challenging a will is frequently a result of contentious probate, you can still have an instance of contentious probate where the will remains unchallenged.

What is the Inheritance (Provision for Family & Dependants) Act 1975?

Under the terms of the Inheritance Act, certain classes of persons can bring a claim if they feel that the distribution of the estate does not make reasonable financial provision for them. 

Classes of Claimants and Their Eligibility

The classes eligible to claim under the Inheritance Act include children, spouses, cohabitants, and individuals financially dependent on the deceased.  The Act, at times referred to as the ‘mistresses charter,’ aims to address financial provisions for those who may have been overlooked in estate distribution.

Demonstrating Financial Needs and Resources

An application under the Act can only be made where the Claimant can make out an unmet financial need. For adult children, this was traditionally restricted to those who had financial needs which arose as a result of circumstances beyond their control (such as physical or mental health problems which meant that they could not work).

Impact of Ilott v Mitson (2011) and Clarifications

The case of Ilott v Mitson (2011) has extended that somewhat, but it is clear the Act can only be used where there is a demonstrable need and not to make the distribution of the estate ‘fair’. However, this is one of the laws which is often relied upon in cases of contentious probate, where a family member feels they have been unfairly left out of a will, due to their dependence on the deceased.

If you’d like to speak to an experienced legal professional about any of the topics covered in this article, you can contact a member of the team via our website, and they will be in touch shortly to discuss your situation.

 If you’d like to learn more about writing a will or contesting an existing will, feel free to visit our service pages to see how we support our clients.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*