Challenging a will can lead to family disputes and emotional turmoil during a time of grief, and complicate a process that can already be difficult due to the administrative requirements placed on executors. At the same time, there are often legitimate reasons for doing so - for example, if you have questions about the will's validity that cannot be answered after the person's death. There are only a few specific legal grounds on which you can contest a will, but it may be important to issue a challenge in these cases.

Both the testator (the person making the will) and the executor (the person carrying out the testator's wishes) can take steps to prevent someone from contesting a will. The most important step for testators is to write a legally valid will in the first place. Executors must make sure that they have identified the most up-to-date document (meaning that there is not a new will that automatically revokes the version they have) and that it is free from legal or administrative errors. Working with a legal professional when writing a new will is the best way to avoid problems later, but there are also specific steps to keep in mind during the process.

Here, the knowledgeable wills and probate dispute solicitors at JMW explain the process of contesting a will and the grounds for doing so, as well as the points at which you can prevent someone from contesting the will and keep things moving. We also offer advice on writing a will that is binding and that can prevent legal action or disputes from arising.

What is the process of challenging a will?

In the first place, someone can challenge a will by entering a caveat at the Probate Registry, which stops probate from being granted while the dispute is resolved. This can allow the dispute to be resolved amicably without the need to involve the court. The party that wishes to contest the will can enter the caveat and, once granted, it will last for six months, although it can be renewed for a further six months if necessary. Anyone with an interest in the estate can enter a caveat, which in most cases means an individual who stands to inherit under a previous will or intestacy rules.

When a caveat is entered, this represents an opportunity to negotiate with the other party and try to come to an agreement. This can prevent the challenge from moving to court, and minimise the legal costs and time it will take to bring the inheritance dispute to a close. You may also pursue mediation or another form of alternative dispute resolution (ADR), which is a more formal way to resolve contested wills without going to court.

Alternatively, in response to the caveat, the executor or those applying for probate may issue a warning. This may include a request for them to explain their reasons for disputing the will, or may ask them to remove the caveat. The disputing party can then choose to withdraw the caveat or file an appearance to defend their challenge in court. If they file an appearance, formal proceedings may be necessary to challenge the will to ultimately allow the estate to be administered.

What are the grounds for challenging a will?

There are very specific legal grounds for challenging a will, and the party issuing the challenge must provide significant evidence. The grounds for contesting a will include:

• Lack of testamentary capacity – If the testator was not of sound mind or did not have the mental capacity to make a valid will.
• Undue influence – If the testator was pressured into making or changing their will.
• Lack of valid execution – If the will was not signed by the testator and two independent witnesses, as required under the Wills Act 1837.
• Fraud or forgery – If the will is suspected to be falsified or made under deceitful circumstances.
• Inheritance Act claims - If the will does not make reasonable financial provision for a family member or someone who relied financially upon the deceased.

These are not the only options, and you can find out more in JMW's guide to the grounds for contesting a will.

It is difficult to prevent someone from making a claim under the Inheritance (Provision for Family and Dependants) Act 1975, except by the testator including financial support for them in the will in the first place. In other cases, beneficiaries may decide to defend the contested will in court, and working with experienced solicitors is the best way to ensure that your best interests are protected. 

However, it is always best to try an informal approach, such as mediation, before proceeding to court - and, in fact, the court will certainly recommend this. During ADR processes, you can have a legal professional represent your interests and negotiate on your behalf, which can help to make sure that any agreement meets the legal requirements.

How can you prevent someone from contesting your will when writing it?

Under English and Welsh law, there are only a few specific legal bases for challenging a will. For a person making their will, this means that there are specific steps they can take to anticipate and try to avoid these potential grounds before they arise. The importance of having a will professionally prepared by a solicitor should go without saying, as this is the only certain way to ensure the document contains a clear explanation of all of your final wishes and does not contain ambiguities. That person will also be an independent witness to a testator’s wishes, should there be any challenge made.

DIY wills are more likely to be challenged due to errors in execution, but your solicitor can prepare a formal last will and testament that complies with the Wills Act 1837 and keep records of discussions that will disprove any claims that the testator was coerced or misled. To avoid claims of undue influence, the testator should meet their solicitor alone, without family members or other beneficiaries present, and the solicitor should record discussions to confirm that the will reflects the testator’s true intentions. 

Another consideration to protect a will from challenge is to arrange for a medical assessment at the time of making the will to prove that the testator had full testamentary capacity. A testamentary capacity assessment conducted by a medical practitioner can prevent a successful challenge, particularly if the testator is elderly or unwell and if they are given good instructions on exactly what they ought to consider. Ask a specialist doctor to provide a written statement confirming your capacity, and instruct your solicitor to draft the will and document evidence that you understood the decisions you were making. This is particularly important if your will differs from what your beneficiaries might have expected or if you are making a significant change to a previous will. You can also include a letter of wishes to clarify (and reinforce) the decisions you have made in your will.

If appropriate, making lifetime gifts can reduce the size of your estate and limit potential disputes by clearly demonstrating your intentions while you are still alive. With that said, gifts should be carefully documented to avoid any claims that they were made under undue influence, and they may also be subject to a capacity challenge. Regularly reviewing and updating your will, ideally every three to five years, and/or making a new will after major life events, can help to provide evidence that it reflected your intentions at the time of your death.

Do not keep physical copies of any previous wills. Some people do this as a way to show that their plans for their estate remained consistent over time, but this will make it harder to identify the most up-to-date version of the document. Store your original will with your  solicitor, if they offer a will storage service, or in a safe place where the executor can access it and knows where to find it. Make sure you choose someone you trust as an executor - if they can access your will and if they cannot be trusted, there is sometimes a risk of forgery (or allegations of forgery). If your solicitor has made detailed attendance notes about your discussions over your will, these can prevent someone from contesting the will's validity or provisions.

Finally, consider using a no-contest clause or forfeiture clause in the will. This may deter challenges by stating that any beneficiary who disputes the will stands to lose their inheritance as a result - although they are not always followed. A no-contest clause can be controversial and does not prevent claims under the Inheritance (Provision for Family and Dependants) Act 1975 being made, although they can be taken into account by the Court. As such, it is important to consult your solicitor about whether or not this is the right approach to prevent challenges or legal proceedings after you die.

What else should a testator bear in mind?

Making a will can be a complicated process, especially if you do not want it to be subject to challenges. It means taking into account the requirement to make reasonable financial provision for certain parties, the need to prove that you are of sound mind, and the obligations under English and Welsh law to have the document signed by two independent witnesses who meet specific criteria. Working with a solicitor is the best way to make certain that all of these needs are fulfilled.

There are also lots of estate planning options to consider, and the expert team at JMW can help to structure your will in the way that will most benefit your intended beneficiaries. For example, placing assets into a trust can enable others to manage them on your behalf, and may also help to reduce any risk of disputes later. It can also limit the amount of Inheritance Tax payable on your estate. Other legal mechanisms can also help to prevent challenges to your will from arising, and our experts can discuss what you want to achieve and draft a will that meets your requirements.

Communication is one of the most important ways to anticipate and prevent challenges, beyond creating a legally valid will. Including a side letter with a clear explanation of your wishes and discussing gifts with your loved ones can help them to understand the provisions of your will ahead of time. It also means that if there are legitimate reasons to contest the will - because it has been changed without your knowledge, for example - they are empowered to do so.