Contesting a Will in England and Wales: What You Need to Know Before You Start
Losing a loved one is difficult enough without discovering that their will does not reflect what you believed…
Grounds for Challenging a Will
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Lack of testamentary capacity — under the test in Banks v Goodfellow [1870], the testator must understand: the nature of making a will, the extent of the property they are disposing of, the claims of those who might expect to benefit, and must not be suffering from a disorder of the mind that perverts their sense of right or poisons their affections. Dementia, Alzheimer's, and other conditions can impair capacity — a solicitor instructs a medical expert to assess the testator's capacity at the time the will was made.
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Lack of knowledge and approval — even where a testator had capacity, they must have known and approved the contents of the will. A blind testator, a testator with limited literacy, or a testator who did not read the will before signing may not have known its contents. Suspicious circumstances (such as a beneficiary who drafted the will or was present at its execution) raise a presumption against knowledge and approval.
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Undue influence — where a person was coerced or manipulated into making a will that does not reflect their true wishes. Unlike other grounds, undue influence is never presumed — it must be proved. Evidence includes isolation of the testator, financial dependency on the influencer, sudden change in the testator's instructions, and the influencer accompanying the testator to the solicitor's office.
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Fraud and forgery — where the will itself has been forged, or where the testator was deceived into making a will on false pretences. These are serious allegations requiring expert evidence — handwriting analysis, paper and ink analysis, and witness evidence of the testator's instructions.
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Failure to comply with s.9 Wills Act 1837 — where the will was not signed by the testator, not witnessed by two independent witnesses present at the same time, or where a beneficiary's spouse witnessed the will (making that gift void). An improperly executed will is entirely void and the estate passes under an earlier valid will or intestacy.
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Rectification — under s.20 Administration of Justice Act 1982, a court can rectify a will where it fails to carry out the testator's intentions due to a clerical error or a failure to understand the testator's instructions. Applications for rectification must be made within 6 months of the Grant of Probate, unless the court grants an extension.
Entering a Caveat — Stopping the Grant
A caveat is a document lodged at the Probate Registry that prevents a Grant of Probate or Letters of Administration from being issued. Where a will is to be challenged, a caveat must be entered immediately to:
- Prevent the executors from obtaining authority to deal with the estate
- Preserve time to investigate the grounds of challenge
- Prevent the estate from being distributed to the wrong beneficiaries
A caveat lasts for 6 months and can be renewed. The executors can challenge the caveat by warning it — which triggers a legal process requiring the caveator to issue a claim or enter an appearance. A solicitor lodges the caveat, responds to any warning, and progerns the underlying challenge.
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Frequently Asked Questions
Who can contest a will?
Any interested party can contest a will — a person named in an earlier will, a person who would inherit under intestacy, or a creditor of the estate. The claimant must have an interest in the estate that would be improved if the challenge succeeds. Standing to bring a claim is assessed at the outset — a solicitor advises on whether you have sufficient interest to bring a claim.
How long do I have to contest a will?
There is no single time limit for contesting a will. The limitation period depends on the ground: a claim for the return of estate assets is typically subject to a 12-year limitation period; a claim for rectification must be made within 6 months of the Grant (unless the court grants an extension). However, the sooner action is taken — ideally before the Grant is issued — the better, to prevent distribution of the estate.
How do I obtain evidence to challenge capacity?
The most important evidence is the testator's medical records at the time the will was made. A solicitor obtains the medical records (with the consent of the estate or by court order), instructs a medical expert to review them, and prepares an expert report on the testator's capacity at the relevant time. Attendance notes from the solicitor who prepared the will are also important — they should record how the testator gave instructions and whether capacity was assessed.
What happens if the challenge succeeds?
If the challenged will is declared invalid, the estate passes either under an earlier valid will (if one exists) or under the intestacy rules. Where a specific gift is declared void (e.g., a gift to a witness-beneficiary), the rest of the will remains valid and the void gift falls into the residue. Where the will is set aside entirely, the estate passes to those entitled under the rules of intestacy or under an earlier will.
Can I challenge a will on the basis that I was not left enough?
Not by contesting the will's validity — a will can be perfectly valid even if it leaves you nothing. However, if you fall within the categories of claimants under the Inheritance (Provision for Family and Dependants) Act 1975 (spouse, former spouse, 2-year cohabiting partner, child, or dependant), you can bring a separate claim for reasonable financial provision. This is distinct from a validity challenge and has a 6-month time limit from the Grant of Probate.