Challenging a Will: Grounds, Process and Practical Considerations

Contesting a will can be emotionally challenging and legally complex. This guide outlines the legal grounds on which a will may be challenged under English law and provides practical advice on the steps, time limits and risks involved.

Legal grounds for challenging a will

A will cannot be contested simply because someone dislikes its terms; there must be a valid legal basis.

Lack of valid execution

Section 9 of the Wills Act 1837 requires that a will must be in writing and signed by the testator (or someone else in their presence and at their direction). The testator must intend their signature to give effect to the will and must sign or acknowledge it in the presence of at least two witnesses who are present at the same time. Each witness must then sign the will in the testator’s presence. The will maker must be over 18, make the will voluntarily, be “of sound mind” and sign in the presence of two witnesses who also sign.

Lack of testamentary capacity

To make a valid will, the testator must have mental capacity. The common‑law test established in Banks v Goodfellow requires that a person must understand the nature and effect of making a will, understand the extent of their property, appreciate the claims of those who might reasonably expect to benefit, and not be affected by a disorder of the mind that influences their decisions.

Lack of knowledge and approval

Even if a will meets the formalities, it may be set aside if the testator did not know and approve its contents. This can occur when a will is signed without being read over, or where mistakes were made during drafting that went unnoticed.

Undue influence or coercion

A will must reflect the testator’s free wishes. Undue influence involves pressure that overpowers their free will. Persuasion or disagreements within families do not amount to undue influence; evidence of coercion must be strong.

Fraud or forgery

A will is invalid if the signature is forged or if the testator was deceived about its contents. Handwriting analysis and other forensic evidence are often needed to prove fraud.

Rectification and clerical errors

A will can be rectified by the court if it fails to reflect the testator’s intentions due to a clerical error or a misunderstanding by the person preparing it. Such claims should generally be made within six months of the grant of probate.

Inadequate financial provision

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain individuals such as, spouses, civil partners, children and dependants, to seek reasonable financial provision from an estate if a will does not provide for them.

Who can challenge a will?

Not everyone can contest a will. Potential challengers include beneficiaries named in the current or a prior will, certain relatives and dependants who can bring claims under the 1975 Act, and individuals promised inheritance.

Evidence required

Strong evidence is essential for a successful challenge. This may include:

• Medical records and expert reports to demonstrate lack of capacity.
• Witness statements from those present at the execution of the will or who observed coercion.
• Handwriting and forensic evidence for forgery claims.
• Solicitor’s files and correspondence to confirm instructions and whether the will reflects the testator’s wishes.
• Financial records and evidence of dependency for claims under the 1975 Act.

Time limits

Time limits vary by claim type:

• Inheritance Act claims generally must be brought within six months of a grant of probate.
• Rectification claims also should be issued within six months of a grant of probate.
• Fraud or forgery claims have no statutory limit, though delay can hamper recovery.

There is no statutory time limit on validity challenges but contesting as early as possible is recommended; contesting after probate is possible but more complicated and costly.

Prompt advice is therefore essential.

How to contest a will: the process

• Seek legal advice – Early legal assessment helps determine whether a challenge is viable.
• Obtain and review the will – If not already in possession, a copy may be requested from the Probate Registry.
• Consider lodging a caveat – Entering a caveat prevents probate being issued for six months, giving time for investigation. Because executors can challenge a caveat, this step should be taken with legal guidance.
• Gather evidence – Assemble medical records, witness statements, solicitor’s files and financial documents.
• Attempt settlement – Mediation or negotiation can resolve many disputes and preserve estate value.
• Court proceedings – If settlement fails, proceedings may be issued in the High Court or County Court. Litigation is expensive and time‑consuming; unsuccessful parties can be ordered to pay costs.

Risks and costs

Challenging a will carries significant financial and emotional risk. The claimant typically funds the claim initially and may be ordered to pay the opposing party’s costs if unsuccessful. Legal costs can exceed the value of the inheritance being contested. A careful cost‑benefit analysis is therefore essential.

Preventing disputes

Ensuring a will is robust reduces the risk of challenges:

• Use a qualified professional to draft or update the will.
• Follow statutory signing and witnessing requirements.
• Consider obtaining medical assessments for elderly or vulnerable testators.
• Keep detailed notes of instructions and discussions.
• Communicate testamentary intentions to family members where appropriate.
• Review the will regularly, particularly after major life events.

Conclusion

Contesting a will is not straightforward. Success depends on strong evidence, prompt action and valid legal grounds. Individuals who believe a will is invalid or fails to provide reasonable provision should seek professional advice early.

Disclaimer: This article provides general guidance only and does not constitute legal advice. You should seek tailored advice before taking or refraining from any action.