When someone dies, their estate is dealt with according to their will or, if there is no valid will, according to the intestacy rules. In England and Wales, individuals have considerable freedom to choose the beneficiaries who will inherit under their will. However, potential beneficiaries are sometimes unhappy with a will and may seek to challenge it in the courts. Any such challenge must commence within six months of the grant of probate.

Challenges to a will are usually made for one of two reasons:

(a) the will is invalid; or

(b) the will does not make adequate (or any) provision for a particular person or persons.

Claiming that a will is invalid

There are several potential grounds.

(1) Lack of testamentary capacity

Only an individual of sound mind may make a will. This does not automatically exclude deathbed wills. Provided the testator understood what they were doing and the implications of their decisions, their will is unlikely to fail for lack of testamentary capacity.

(2) Undue influence

Undue influence, or duress, is where a testator is pressured into making a will or is coerced into choosing to make particular bequests to certain individuals or organisations such as charities.

(3) Fraud 

Fraud may have occurred if a will does not reflect a testator’s true intentions. Although this makes it similar to undue influence, there is usually no element of coercion or pressure to fraud. Due to the “behind closed doors” nature of testamentary fraud and to the fact that one of the main witnesses – the testator – is deceased, it is difficult to assess how many wills really are fraudulent. Successful challenges are rare but include cases where the claimant has proved that the testator left money or property to a particular individual as a result of false representations made about that person’s character or personal needs.

(4) Forgery

Sometimes classified with fraud, forgery occurs where someone impersonates the testator in order to draw up and execute a will.

(5) Knowledge and approval

Proving undue influence or fraud can be very difficult. Where the circumstances surrounding the will’s execution are suspicious, it may be easier to argue that the testator lacked the knowledge necessary to understand their will and so did not approve its contents.

(6) Failure to execute the will correctly

This is less likely as a potential ground of challenge if a will was drawn up by an experienced probate solicitor. However, anyone who chooses to draft their own will risks skipping essential procedural requirements, such as the need to sign the will in the presence of two independent witnesses. Failures can lay the will open to subsequent challenge.

Claiming that a will does not make adequate (or any) provision for a particular person or persons

Testators in England and Wales have relative freedom when it comes to disposing of their assets. However, failure to make reasonable provision for a dependent can be contested under the Inheritance Act 1975. There is no exact classification of “dependent” but it may include a spouse, cohabitee, minor child, adult child who was financially reliant on the testator, or anyone who the testator treated as a close family member. A successful challenge does not automatically mean that other beneficiaries will be disinherited. Instead, a judge will decide what amounts to “reasonable provision” for the claimant.

Seeking legal advice

The decision to challenge a will can be emotionally-fraught. Meanwhile, the process itself can be lengthy and often expensive. Nuanced legal advice from an experienced probate solicitor is essential at the outset. Our experienced team at Keoghs Nicholls Lindsell & Harris LLP is here to help you with sensitivity and in confidence.

Elliot Preece