Challenging a Will: Key Legal Grounds and How to Start a Claim

When can you challenge a will in England and Wales?

Disputes over wills can arise in a wide range of circumstances, from unexpected changes in testamentary intentions to concerns about vulnerability or external influence. For individuals and families, these disputes are often both legally complex and emotionally charged.

In England and Wales, a will can only be challenged on specific legal grounds. Understanding those grounds, and taking the right steps at an early stage, is essential for anyone considering a claim. It is also important to act promptly, as delay can prejudice the estate administration and may affect the practical options available.

Grounds for challenging the validity of a will

It is not uncommon for concerns to surface following a death, particularly where the contents of a will come as a surprise. This may include situations where close family members have been excluded, or where significant changes have been made late in life.

However, it is important to recognise that individuals are generally free to leave their estate as they choose. A will cannot be challenged simply because it appears unfair. There must be a valid legal basis for doing so. A disappointed beneficiary, or someone who expected to inherit, will therefore need to consider carefully whether the issue is one of validity, financial provision, or simply dissatisfaction with the deceased’s wishes.

Lack of testamentary capacity

One of the most frequently relied upon grounds is lack of testamentary capacity. In order to make a valid will, the person making it must understand the nature and effect of the document, the extent of their estate, and the claims of those who might reasonably expect to benefit. They must also be free from any disorder of the mind that influences their decisions about how to dispose of their estate.

Issues around capacity often arise where the testator was elderly or suffering from conditions such as dementia. Medical evidence can play a key role in these cases, alongside evidence from those involved in preparing the will. However, a diagnosis of dementia or another medical condition does not automatically mean that the testator lacked capacity. The question is whether they had the necessary capacity at the time the will was made.

Undue influence

Undue influence occurs where the testator has been coerced or pressured into making a will that does not reflect their true wishes. This is a serious allegation and can be difficult to prove.

The courts require clear evidence that the testator’s free will was overridden. Suspicion alone is not sufficient. However, certain factual patterns, such as dependency on a particular individual combined with significant changes in the will, may warrant closer scrutiny. Examples may include isolation from family members, sudden changes benefiting one person disproportionately, or a beneficiary taking a controlling role in arranging the will.

Lack of knowledge and approval

Even where capacity is present, a will may still be invalid if the testator did not understand or approve its contents. This ground often overlaps with situations involving suspicious circumstances.

For example, concerns may arise where a beneficiary was involved in preparing the will, or where the testator was vulnerable or isolated. In such cases, the court may require stronger evidence that the will genuinely reflects the testator’s intentions. This may be particularly relevant where the will is homemade, the terms are unusual, the testator had poor eyesight or literacy difficulties, or the will represents a significant departure from previous testamentary intentions.

Improper execution

The formal requirements for a valid will are set out in the Wills Act 1837. A will must be in writing, signed by the testator, and witnessed by two independent witnesses present at the same time. More precisely, the will must be signed by the testator, or by someone else in their presence and at their direction, and the signature must be made or acknowledged in the presence of two or more witnesses present at the same time, who must each sign or acknowledge their signature in the presence of the testator.

Failure to comply with these requirements can render the will invalid. While this may appear straightforward, disputes can arise where the circumstances of execution are unclear or contested. For example, questions may arise about whether the witnesses were both present at the same time, whether the testator properly acknowledged their signature, or whether a witness also benefited under the will.

Fraud and forgery

In more serious cases, a will may be challenged on the basis that it is fraudulent or has been forged. These claims require strong evidence but can arise where there are concerns about the authenticity of the document or the signature.

Forgery claims often require expert handwriting evidence, while fraud allegations may involve wider evidence about the circumstances in which the will was prepared, signed or stored. Because these are serious allegations, they should not be advanced lightly.

Claims under the Inheritance Act 1975

It is important to distinguish between challenging the validity of a will and bringing a claim for financial provision. Even where a will is valid, certain individuals may be entitled to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

This applies where the will (or intestacy) does not make reasonable financial provision for an eligible, such as a spouse, civil partner, former spouse or civil partner who has not remarried or entered into a further civil partnership, cohabitant, child, person treated as a child of the family, or financial dependant.

These claims are subject to strict time limits and involve a different legal test, focusing on what is reasonable in the circumstances. The usual deadline is six months from the date on which the grant of representation is first taken out, although the court has discretion to allow claims out of time in limited circumstances.

Taking the first steps safely

Where there are concerns about a will, early action is often crucial. One of the first steps that can be taken is entering a caveat at the Probate Registry. This prevents a grant of probate from being issued and ensures that the estate is not distributed prematurely. A caveat is generally used where there is a genuine concern about the validity of the will or the entitlement to take out the grant. It should not usually be used simply as leverage in a financial provision dispute.

At the same time, it is important to begin gathering evidence. This may include obtaining medical records, reviewing earlier wills, and requesting the file of the solicitor who prepared the will.

Legal advice at an early stage can help assess the strength of the claim and determine the most appropriate course of action. This is especially important before entering or maintaining a caveat, making serious allegations such as fraud or undue influence, or issuing proceedings.

Pre-action considerations and resolution

Before formal proceedings are issued, parties are generally expected to engage in pre-action correspondence. This may involve setting out the basis of the claim in a formal letter and exploring the possibility of settlement.

Many contentious probate disputes are resolved without the need for a full trial. Mediation is commonly used and can provide a more cost-effective and less adversarial route to resolution. Early without prejudice negotiations may also assist, depending on the nature of the dispute.

Risks and practical considerations

Challenging a will is not without risk. Legal costs can be significant, and outcomes are not always predictable. In addition, these disputes can place considerable strain on family relationships.

It is therefore important to approach the matter carefully, with a clear understanding of both the legal and practical implications. Potential claimants should consider the strength of the evidence, the value of the estate, the likely costs, the risk of an adverse costs order, and whether a negotiated outcome may be preferable to contested litigation.

Conclusion

Challenging a will requires careful consideration of both legal grounds and practical realities. While the law provides clear routes for bringing a claim, success depends on evidence, timing and strategy.

For individuals facing concerns about a will, taking early advice and adopting a structured approach can make a significant difference, both in protecting their position and in achieving a fair outcome. The safest approach is usually to identify the correct legal basis for the claim, preserve evidence early, and consider resolution options before embarking on contested proceedings.

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This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited.

 

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