A Guide to the Grounds for Contesting a Will

What Are The Legal Grounds?

Lack of valid execution

There are many legal requirements that must be met under the Wills Act 1837 for the document to be valid. These are designed to prove that a will was prepared according to the wishes of the testator and that no outside influences affected its contents.

To be considered valid, a will must be signed in the presence of at least two witnesses, by a testator with clear intentions to give effect to the will. These should be independent witnesses who do not benefit from the estate, and who are not married to beneficiaries. They must sign in the testator's presence to show that the testator signed the document.

This can be complicated and lead to errors. Failure to execute a will properly can be grounds to issue a legal challenge. Often called a lack of due execution, this is a more common problem in wills prepared without the oversight of a qualified solicitor. While it is possible to prepare a legally sound will on your own behalf, it’s easy to overlook or misunderstand the regulations around how it must be executed and thereby invalidate the will if you do not have input from a legal expert.

In some cases, it will be clear that the will has not been created according to legal regulations - for example, if witness signatures are missing. In other cases, witness statements may prove that the will was not prepared legally if, for example, the testator did not sign in the presence of the witnesses.

Lack of testamentary capacity

In some cases, a will may have been created in a way that is legally sound and valid, but if the testator did not have sufficient mental capacity to make or understand their decisions, the will may still be deemed invalid. When giving instructions for a will, it is a legal requirement that the testator must be of sound mind and understand the extent of their estate. They must also be clearly aware of whom they are choosing to include or exclude in the will. 

It can be difficult to prove that a testator was not of sound mind when signing their will. If medical records show that the document was created while they were in a period of mental ill-health, or they experienced a mental illness or disorder on an ongoing basis, this could show that they lacked the testamentary capacity to make the will.

If the testator had certain other impairments that may make it more difficult to verify the contents of the will, such as blindness or a lack of fluency in English, this can also be grounds for contesting a will. However, this would usually be considered a ‘lack of knowledge and approval’ for the purposes of legally challenging the will.

Lack of knowledge and approval

If you can show that a testator did not know, understand or approve of the contents of their will, you can contest the will. This is most common when a testator has a physical or communicative impairment; for example, if they are blind, hard of hearing or deaf, or illiterate. In these cases, a testator may be unable to review the contents of the will themselves, and place their trust in someone else to do this for them.

It will not be enough to show that the testator had an impairment. You will need further evidence that the will was prepared without the person’s approval, whether intentionally or unintentionally. This is harder if a legal professional was involved in the creation of the will, although the court may examine whether language was an issue or whether an independent interpreter was used if there is concern about the testator’s knowledge or understanding of the contents of the will. It may also be a concern if the will was not read over by the testator prior to signing it, as this makes it difficult to show they had knowledge of the contents.

Undue influence

Sometimes, a will may have been executed according to the law, by a testator who is of sound mind, but has been affected by the undue influence of someone else. Vulnerable people may be more susceptible to coercion and manipulation, and if there is evidence to suggest that someone has tried to influence the contents or provisions of the will, it may be possible to make a challenge.

Manipulation and coercion may take the form of threats of violence against the person, or someone dishonestly pursuing a relationship with the person under false pretences, but to contest a will on these grounds, you will need to provide strong evidence to prove that the testator was coerced. If the testator was especially vulnerable at the time that their will was changed, or added a new beneficiary or disproportionate gift unexpectedly, this could be evidence that they were coerced into making changes.  

Poisoning of the mind

Similar to undue influence, poisoning of the mind involves a person making false statements to a testator about another potential beneficiary of the will, to have that person removed from the will or reduce their share of any inheritance they are due to receive. This is also known as fraudulent calumny.

Because family circumstances can often be complicated, you will usually need to provide strong evidence to support contesting the will on these grounds. You may need to prove that another party made false statements about you or someone else that they knew to be untrue and that they acted with malicious intent to have that person removed from the will.

Depending on your relationship to the deceased, you may also need to establish that you could reasonably have expected to be a beneficiary in the will if the false statements hadn’t been made. This is not always easy to do, and you should speak to a legal expert to determine the viability of your case before you decide to act. 

Fraud or forgery

If you suspect there has been fraud or forgery involved in the creation of a loved one’s will, this is grounds to contest the will. These challenges are rarely successful, and the viability of the case depends heavily on the strength of the evidence.

Forgery involves a will being changed or altered in some way following its creation, or someone other than the testator forging their signature to make a false will look more legitimate. This is more common in cases where a person has created their own will and entrusted it to another person to look after, rather than instructing a law firm or other professional service to keep the will secure.

Fraud, meanwhile, will usually occur when a testator has instructed a person other than themselves to finalise the terms of their will. This second person may be in a position to exploit the testator’s trust and change the terms of the will to benefit themselves or someone else, without the testator’s knowledge.

Who Can Contest a Will?

Only specific parties can bring court proceedings to contest a will. You generally need to have a legal interest in the estate or a valid reason under specific laws. Parties who are usually entitled to raise concerns or challenge the validity of the will include:

• Beneficiaries named under a previous will
• Beneficiaries who would inherit if there was no will (intestacy)
• Executors or administrators

Creditors can make claims against the estate if they are owed money, but this works differently from challenging the will. If you have concerns about whether you are in a position to challenge a will, speak to the team at JMW.

What if You Were Left Out of a Will? Inheritance Act Claims

It is not always necessary to challenge a will if you believe that the terms are unfair. For example, if a will fails to make reasonable financial provision for you, despite the fact that you were a close relative of the deceased or financially dependent on them, there are steps you can take without relying on the grounds listed above.

Under the Inheritance (Provision for Family and Dependants) Act 1975, it is possible to ask the court for a share of a deceased person’s estate if the will (or the intestacy rules, where the person did not have a valid will) fails to make “reasonable financial provision” for you. This option is only open to certain people, including any spouse, child or financial dependant of the deceased.

This differs from challenging a will, because it is not concerned with whether or not the document is valid. Instead, you must argue that the outcome is unfair or inadequate and you ought to be left more reasonable provision from the estate. The court looks at factors like the claimant’s financial needs, the size of the estate, their relationship with the deceased and any obligations the deceased had toward them. If successful, the court can order payments (such as a lump sum, regular income, or transfer of property) from the estate to make reasonable provision. This will affect how much inheritance other beneficiaries can receive, and so it may lead to Inheritance Act disputes.

Is There a Time Limit to Contest a Will?

If you aim to challenge the validity of a will on any of the grounds listed above, there is no fixed statutory deadline for you to do so. However, there are practical limits that you should take into account, and it is not advisable to delay issuing a challenge if you believe you have the grounds to do so.

Ideally, you should act before probate is granted, or very soon after. If probate has not been granted, certain parties can issue a caveat, which pauses the legal process. This lasts for six months and can be renewed, which can give you extra time to investigate irregularities or negotiate an outcome without any involvement by the court.

Once probate is granted, the estate can be administered. When assets have been distributed, recovery becomes difficult and may limit the remedial actions available, even if you make a successful claim. There is also the risk that evidence will not be preserved if you wait too long to start your challenge, as the memories of key witnesses will fade and the availability of certain documentary evidence will reduce over time.

If you aim to make a claim under the Inheritance Act, you must do so within six months from the date probate is granted. This deadline is applied strictly, and while late applications are sometimes possible, permission must be granted by the court and this is rarely approved. You should act as early as possible to give yourself the best chance of success.