Contesting a will can add uncertainty to an already difficult time; it’s also a topic around which there is a lot of confusion. English law asserts the importance of respecting the wishes of the person who’s died – even when this is not necessarily what family and friends are expecting. Even an odd distribution of the estate, as long as it’s in accordance with what the person who has died wanted, isn’t normally grounds for challenging a will.

But if you suspect the will doesn’t reflect the true intentions of the person making the will (the ‘testator’), or the will hasn’t been followed (‘executed’) correctly, it may be invalid and able to be contested.

If there is no will, or the only will that exists is determined to be invalid, the estate (the possessions and assets, including property, of the person who has died) will be distributed in line with the rules of intestacy – this is a hierarchy of relatives detailing who gets what from an estate.

The grounds for contesting a will include: 

  1. lack of testamentary capacity
  2. undue influence or coercion
  3. lack of knowledge and approval
  4. Wills Act 1837
  5. and forgery and fraud.

Our team

Our approach to helping you deal with the emotional and upsetting matter of contesting a will in the most empathetic, sensitive way means having expert solicitors who are equipped with extensive knowledge and experience in ‘contentious probate’ – challenging wills. With years of experience of resolving will disputes, you’ll have a lawyer you can trust will act in your best interest, whose sole focus is resolving the issue at hand as quickly and painlessly as possible.

What happens when a will is contested?  

Contesting a will is a complex process; we’ll help identify the best way to address your concerns about the execution of a will including mediation and, where appropriate, taking the matter to court.

The first thing to do is to establish the will has been properly signed and witnessed in order to make it valid. If you suspect that it may not be valid, you can contest it on the grounds of its validity.

When a will is contested, the executor(s) normally takes a neutral approach so they aren’t responsible for legal costs if there are concerns about how they have handled the estate. This may mean administering the estate is delayed significantly while the parties involved attempt to come to a friendly resolution or until the matter is resolved by an Order of the Court.

What are the grounds for contesting a will?

There are generally two bases for contesting a will; either the will itself is invalid, or it fails to make ‘reasonable financial provision’ for a family member or someone who was financially maintained before their death.

There are a few grounds on which you may be able to question whether the will is valid. In legal terms, the grounds for contesting a will are:

  1. lack of testamentary capacity
  2. undue influence or coercion
  3. lack of knowledge and approval
  4. Wills Act 1837
  5. and forgery and fraud.

The validity of a will can be contested if you believe it was created under one or more of following conditions:

The person who has died did not have sufficient mental capacity at the time the will was drawn up

This is called a lack of ‘testamentary capacity’. The law says that, at the time of drawing their will up, the person must be of “sound mind, memory and understanding.” This means that the person making the will must:

  • Understand what they are doing and what effects those actions will have
  • Understand the full extent of what they are distributing
  • Be able to appreciate the effects of including or excluding certain people from their will
  • Not have a ‘disorder of the mind’  

If you want to know more about contesting a will on the grounds of lack of testamentary capacity, you can read our guide here.

The person who died did not have sufficient knowledge and approval

For a will to be valid, a person must have understood and approved the contents. Knowledge and approval are normally presumed when the will is executed correctly and the person had the necessary capacity, but there are a few circumstances where the Court may require evidence to prove knowledge and approval was given if there are any disputes:

  • The person making the will was deaf and/or dumb (couldn’t speak)
  • The person making the will could not speak and write, or was paralysed
  • The person making the will was blind or illiterate
  • The will was signed by someone other than the person making the will at his or her instruction

When there is suspicion that the person making the will did not know or approve of the will, the people who believe the will to be valid are the ones who have to prove it is so.

Undue influence

Someone else interfered with the creation of the will, meaning they exerted undue influence on the distribution of assets against the individual’s desire. 

If someone coerces or forces someone into changing their will for the coercer’s benefit, this is called undue influence. It can be very hard to prove, however, as the law doesn’t presume that people in a position of power over the person who has died being named in the will is the result of undue influence.

Someone exerting undue influence can include physical violence, purposely giving inaccurate information, or verbal bullying, but it can also include asking incessantly – what matters is that their wishes overpowered those of the person who has died.

It can be particularly difficult to demonstrate that a will is invalid because of undue influence; exerting pressure (like “but we’re family”) or appealing to moral reasons (like “remember all the things I have done for you”) to be included is not normally considered undue influence unless it overpowered the will of the person who has died.

The will is a forgery or is fraudulent

If either the entire will or the signature of the person who made the will is forged, or the content of the will is fraudulent, then the will is invalid. A fraudulent will is one that includes wishes against the person who has died; it is similar to undue influence but does not require coercion. These grounds can also include beneficiaries (someone who would or does benefit from the will) or non-beneficiaries destroying versions of the will for their gain.

The will has not been executed properly, meaning the estate has not been distributed in accordance with the person’s wishes

A valid will complies with Section 9 if the Wills Act (1837), and must:

  • Be in writing and signed by the person making the will.
  • The person making the will must have signed it with the intention of creating a valid will.
  • Two people must witness the will maker’s signature. Those witnesses must either be present when the will maker signs or, the witness must be told by the will maker, that is his/her signature.
  • The witness then either signs having seen the will maker sign, or signs in the knowledge that it is the will maker’s signature on the document and that the will maker did signed it, with the intention of creating a valid document.

Reasonable financial provision

It may also be possible to seek reasonable financial provision if you depended financially upon the person who has died but no such provision has been made in the will, under the Inheritance (Provision for Family and Dependants) Act 1975. The Act also sets out who is entitled to make a claim on these grounds; normally, spouses or civil partners, cohabitants of two or more years, children, and people who can show they were being supported financially by the person.

Costs of contesting a will

Contesting a will can, unfortunately, be a costly process. Because of the variation in work required from case to case, it’s hard to give an average cost of contesting a will.

As is usual with litigation, the court normally decides who bears the cost – although it is most likely that the losing party will pay for the winning party’s costs (in addition to their own). Because of this, it can’t be assumed that costs will be met by the estate. There are a couple of circumstances when the court may make an alternative order as to who pays what:

  • If the person who made the will, or the people who are interested in what’s left of the estate, are found to have caused the legal challenge, then the costs may be taken from what is left of the estate.
  • If the court thinks that an investigation into the will, then each party will cover their own costs.

Because of the potential costs, it’s crucial to assess the merits of a claim and the chances of proving successful before any action is undertaken.

Contentious probate specialist Martin Oliver receives the highest of praise from market commentators: "He has a very good legal brain, an eye for detail and a tactical sixth sense. He has an appropriate mix of empathy and clear, unambiguous and realistic advice.

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Case studies

Contesting a will after probate

It’s important to act as quickly as possible if you think you may have grounds for contesting a will. This is because it’s easier to notify the executor(s) of the will of a claim before anything is distributed. If a will may be invalid, a ‘caveat’ can be entered against the state to prevent a Grant of Probate being issued.

It is technically possible to contest a will after probate has been granted, but this can result in practical difficulties if assets have already been distributed.

Martin Oliver continues to enjoy a healthy reputation in the contentious private client sphere. He has a particular interest in matters concerning the Inheritance Act 1975.

Chambers UK

How long do I have to contest a will?

If you’re making a claim for reasonable financial provision, there is a time limit of six months from probate being issued (the will being legally accepted). If you’re challenging the validity of the will, then there is no time limit, although it is advisable to act as quickly as possible because the estate having already been distributed can create difficulties.

Who pays to contest a will?

Because of the complex nature of challenging a will, it can be a very expensive undertaking. That said, there are several potential ways to fund the challenge. Depending on your circumstances and the case at hand, these can include fixed fee, no-win-no-fee, and conditional fees. It’s important to stress that you can’t assume that the costs of contesting a will will be taken out of the estate; what happens more often is that one party (normally the losing one) pays for the winner’s fees. If you’re unsure about the viability of a claim, we’re able to help you navigate your options, including after the event insurance.

Who can challenge a will

Legally speaking, anyone can challenge the validity of a will, but it is usually people involved in the person’s life who may or may not have been expecting to receive a share of their estate. How the estate is distributed if a will is proved invalid is at the discretion of the court; there’s no guarantee you will receive anything, as the court normally distributes the estate in line with the most recent valid version of the will – if you weren’t on that version, it’s unlikely you’ll receive anything. If there is no prior valid will, the rules of intestacy will be followed; this means only family members will receive any of the estate, and if there is no surviving family, the estate will go to the Crown.

If you want to challenge a will for failing to make a reasonable financial provision, you’ll need to be a financial dependant and normally one of the following: a spouse, civil partner, or ex-spouse or ex-civil partner who is yet to remarry; cohabitants, including unmarried partners; or a child, or someone raised as a child.

FAQs

What is contesting a will?

Contesting a will is challenging the validity of the will. A will can be invalid for several reasons: these can include the person who made the will not having had the necessary mental and legal capacity to make a will or not understanding the content of the will; the will maker being coerced into agreeing to the terms of the will by other people; or the will being drafted fraudulently.

In addition to the above, where a will does not provide reasonable financial provision for family members or those who have been maintained by the deceased during their lifetime, a claim may be brought under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision.

What are the grounds for contesting a will?

There are generally two bases for contesting a will; either the will itself is invalid, or it fails to make ‘reasonable financial provision’ for a family member or someone who was financially maintained before their death.

There are a few grounds on which you may be able to question whether the will is valid. The validity of a will can be contested if you believe it was created under one or more of the following conditions:

  • The person who has died did not have sufficient mental capacity at the time the will was drawn up
  • The person did not understand or was not fully aware of the content of the will
  • Someone else interfered with the creation of the will, meaning they exerted undue influence
  • The will is a forgery or is fraudulent
  • The will has not been executed properly, meaning the will has not been signed and witness properly

It may also be possible to seek reasonable financial provision if you depended financially upon the person who has died but no such provision has been made in the will, under the Inheritance (Provision for Family and Dependants) Act 1975. This Act also sets out who is entitled to make a claim on these grounds; normally,

  1. spouses or civil partners;
  2. cohabitants of two or more years immediately prior to death;
  3. children; and
  4. people who can show they were being supported financially by the person.

Who can contest a will?

Anyone can challenge the validity of a will. It’s important to note that, in these circumstances, the estate will normally be distributed in line with the most recent, previous valid version of the will. If your challenge to the validity of the will is upheld, and you were not on the most recent, previous valid  will, then it’s unlikely you’ll get anything from the estate, unless you have a claim for reasonable financial provision. If there is no valid previous will, then the estate will be distributed in line with the rules of intestacy.

How much does it cost to challenge a will, and who pays?

Given the amount of investigation required to challenge a will, it is normally a very time-consuming and expensive process, and the exact costs are dependent on the specifics of the case. There are different ways of funding a claim, which should be discussed with your solicitor:

  • ‘No win, no fee’ agreements
  • Fixed fee agreements
  • Insurance
  • Payment from the estate
  • Payment from anything you receive from the estate at the end of the matter

It shouldn’t be assumed that the legal costs will come out of the estate. The usual case with litigation, is that the ‘losing’ party is normally ordered by the Court to pay the successful party’s fees. Sometimes, unsuccessful challenges to the will may be paid for by the estate, but this is the exception rather than the rule and will only be the case when it can be shown that the will maker caused the litigation.

How long do you have to contest a will?

If you think a will is invalid, it’s important to act as soon as possible. For a claim for reasonable financial provision, there is a time limit of 6 months from the date the grant of probate is issued. However, there is no time limit to challenge an invalid will – it is important to act swiftly, though, to protect evidence and avoid difficulties that may occur if the estate’s assets have already been distributed. 

What happens when you contest a will?

The first thing to do is seek immediate legal advice from a solicitor; they will help you determine whether you have a claim. Once your solicitor has looked at your claim and determined that you have the grounds to contest a will, they’ll be able to submit what is known as a ‘caveat’ to the Probate Registry, which means that the probate cannot be issued without notification, which prevents the estate being distributed until such time as the dispute is resolved.

At the beginning of a claim, it’s important to gather evidence which may help your case. This can include medical records, solicitors’ files relating to the drafting of the will, and witness statements.

It is at this stage that resolving the dispute should be attempted – if the dispute cannot be resolved through mediation during this initial stage, then after 3-6 months issuing a claim at Court should be considered. It is not uncommon for the court process for contesting a will to take 12-18 months.

How we can help

If you are looking to contest a will, or if you need advice on defending on a claim from someone trying to contest a will, please give contact our team, who would be happy to help and guide you through the process. 

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