Contested Will Solicitors
A will can be contested on solid legal grounds — but those grounds require evidence, early action, and a solicitor who knows exactly what the court is looking for.
A will is presumed to be valid — but that presumption can be rebutted by evidence of a lack of testamentary capacity, undue influence, fraud, or a failure to comply with the formal execution requirements. Where a will is successfully challenged, it is declared invalid and the earlier will (or intestacy) applies. A specialist solicitor will assess whether the grounds for challenge exist, gather the evidence needed, and manage the proceedings through to resolution.
Grounds for Contesting a Will
The legal bases on which a will can be successfully challenged in England & Wales.
Each ground for contesting a will requires specific evidence — and the prospects of success depend on what that evidence shows. A solicitor will assess the grounds honestly and advise on what is needed before committing to proceedings.
Lack of testamentary capacity
To make a valid will, the testator must understand the nature of making a will, the extent of their estate, and the claims of those who might expect to be included — and must not be suffering from a disorder of the mind that poisons their affections, perverts their sense of right, or prevents them exercising their natural faculties in disposing of their property (the Banks v Goodfellow test). Where the testator had dementia, a brain injury, or a psychiatric condition that affected their understanding at the time the will was made, capacity may be in issue. A solicitor will obtain the medical records and instruct a medical expert to assess the position.
Undue influence
Undue influence — where the testator was coerced or pressured into making a will that did not reflect their true wishes — is a ground for invalidation. Unlike in contract law, undue influence in wills must be actual (not presumed), and is notoriously difficult to prove. The court requires evidence that the influencer's pressure overcame the testator's free will. Circumstantial evidence — the testator's vulnerability, the beneficiary's proximity and control, suspicious changes in the will's instructions — can build a compelling case. A solicitor will assess what evidence is available and what further enquiries are needed.
Fraud and fraudulent calumny
A will can be challenged where it was procured by fraud — including where the testator was deceived into thinking they were signing a different document, or where false statements were made about a beneficiary to cause the testator to exclude them (fraudulent calumny). Fraudulent calumny requires evidence that the false representation was made, that the maker knew it was false or was reckless, and that it caused the change in the will. A solicitor will advise on whether the evidence meets this threshold and manage the proceedings accordingly.
Formal validity — execution failures
A will must be signed by the testator in the presence of two witnesses who both sign in the testator's presence. The witnesses must not be beneficiaries (or their spouses) — if they are, the gift to them is void but the rest of the will stands. A will that was not correctly executed — signed in the absence of the witnesses, or where the witnesses are beneficiaries — is either wholly invalid or partially invalid. A solicitor will assess whether the execution requirements were met, including by obtaining witness evidence if required.
Want of knowledge and approval
Even where a testator had capacity and was not subject to undue influence, a will can be challenged where the testator did not know or approve the contents of the will as executed — for example where the will was prepared by a beneficiary in suspicious circumstances, or where a testator with limited literacy or language skills signed a document they could not fully understand. The court requires positive evidence that the testator knew and approved the contents. A solicitor will assess the circumstances of the will's preparation and the evidence available.
Protecting the estate during the challenge
Where a will is being challenged, the estate should not be administered until the challenge is resolved — if the executor distributes the estate under an invalid will, there may be no funds to satisfy the claim. A solicitor will enter a caveat at the Probate Registry to prevent a grant being issued while the challenge is live, and where necessary apply to the court for an order to preserve estate assets. Acting promptly is important — once the estate is distributed, recovery becomes much harder.