Losing a loved one is difficult enough without the added worry that their will does not reflect their true wishes, yet that concern is the most common reason people contact will dispute solicitors like ours.
Doubts often arise in painful circumstances, for example, where a will was made shortly before death, where it departs without explanation from earlier wills, or where someone who managed the deceased’s affairs in their final years benefits unexpectedly. If something about a loved one’s will does not feel right, it is important to know that there are grounds on which a will can be challenged in England and Wales.
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On What Grounds Can A Will Be Challenged?
There are five principal grounds on which a will can be challenged. They are as follows:
- Lack of due execution. Under section 9 of the Wills Act 1837, a will must be in writing, signed by the person making it, and witnessed by two people present at the same time. Wills that fail these formalities are invalid, however clearly they express the deceased’s wishes.
- Lack of testamentary capacity. The person making the will must understand that they are making a will and its effect, the extent of their property, and the claims of those they might be expected to provide for, and must not be affected by a disorder of the mind that poisons those judgements.
- Want of knowledge and approval, meaning the person did not truly know and approve the contents of the will. Suspicion is heightened where the person who prepared or arranged the will takes a substantial benefit under it.
- Undue influence, where the will reflects coercion rather than the free choice of the person who made it. Persuasion, however forceful, is permitted; pressure that overpowers the free will of the person making the will is not. Undue influence must be proved by the person alleging it, and the courts require cogent evidence before they will find that a will was coerced.
- Fraud or forgery, including forged signatures and wills procured by deliberate deception. Handwriting evidence is often decisive in forgery cases.
A will may also be displaced without any challenge to its validity where a later valid will exists, or where the will was revoked, for example, by the deceased’s marriage after it was made.
Who Can Challenge A Will?
A challenge can be brought by anyone with a legitimate interest in the outcome, most commonly a beneficiary under an earlier will, or a person who would inherit under the intestacy rules if the disputed will fell. Someone with no interest under any will or intestacy cannot challenge validity, although they may have a separate claim for financial provision, which is a different type of case.
What Evidence Will The Investigation Involve?
It can feel uncomfortable to gather evidence about a loved one’s final months, but will disputes are decided on evidence, and looking into matters carefully at an early stage is the surest way to either put your mind at rest or confirm that your concerns are well founded.
Where the will was professionally prepared, the solicitor or will writer should hold a file recording the instructions given, and a request can be made for a full statement of the circumstances in which the will was made. Medical records are usually obtained where capacity is in issue, and expert evidence from a psychiatrist or geriatrician may follow. The attesting witnesses can be asked what they saw. Earlier wills, diaries, correspondence, and financial records all help build the picture, and in forgery cases a forensic document examiner may compare the disputed signature with known examples. You will not be expected to gather any of this alone; obtaining and assessing this material is a central part of what your will dispute solicitor does for you.
How Do You Prevent The Estate From Being Distributed In The Meantime?
If no grant of probate has yet been issued, a caveat can be lodged at the probate registry for a modest fee. While it stands, no grant can be issued, which prevents the executors from distributing the estate while the investigation proceeds. The executors can challenge the caveat by issuing a warning, to which the person who lodged it must respond, so a caveat is a holding step that must be backed by genuine grounds. If a grant has already been issued, a challenge is still possible, but recovering assets that have been distributed adds difficulty, which is why acting promptly matters.
What Happens If The Challenge Succeeds, And What Are The Risks?
If a will is set aside, the estate passes under the last valid earlier will, or under the intestacy rules if there is none. That consequence needs thought at the outset, because a successful challenge is only worthwhile if the alternative distribution actually improves your position.
The risks are principally costs. The starting point in a contested probate claim is that the losing party will be ordered to pay the winner’s costs. While there are limited exceptions to this general rule, you should never assume the estate will pay. Most disputes settle by negotiation or mediation once the evidence has been gathered, and a realistic early assessment is the best protection against a costly misjudgement.
Taking Advice
Concerns about a loved one’s will are never easy to raise, and many people worry that asking questions is somehow disloyal to the person who has died. It is not. Ensuring that a will genuinely reflects their wishes is an act of respect, and taking advice commits you to nothing. Johnson Astills acts with sensitivity for people questioning the validity of a will, and for executors and beneficiaries defending one, across Leicester, Loughborough, and the wider county. If something about a loved one’s will is troubling you, telephone our Loughborough office on 01509 610 312 and ask to speak to the wills and probate team. We will listen to what has happened, assess the grounds, the evidence, and the risks with you honestly, and support you in whatever you decide to do next.
Please call us free now on 0800 059 0600 or complete a Free Online Enquiry and a member of the team will get back to you soon.
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