Challenging a will

Why might someone dispute a will?

An individual may challenge a will for a number of valid reasons. They may have been cut out of the will unreasonably; the testator (the person making a will) may not have had the mental capacity to make a will; the will may be invalid; or a claim may be based on ‘want of knowledge or approval’.

If an individual is successful in challenging a will, it may be set aside as invalid. In other cases the court may award ‘reasonable provision’ to the claimant.

How much will it cost to challenge a will?

It can be very expensive to challenge a will, and unless there is a lot of money at stake it will probably not be worth it. Although wills disputes have increased in recent years, a claim should not be pursued unless you have a good chance of success because of the financial and emotional cost involved, and the length of time it can take for a dispute to end. Litigation involving wills and estates can be prohibitively expensive, with costs running into hundreds of thousands of pounds.

If recent wills disputes are anything to go by, a ruling by a lower court may later be overturned on appeal, with subsequent appeals then taking place. This shows that the courts are still applying the law adopting different approaches.

What makes a will invalid?

Lack of formality: under the Wills Act 1837, a will must be in writing, signed by the testator (or under their instructions), and the testator’s signature must be witnessed by two people who are not beneficiaries under the will (or married to a beneficiary). A testator must be over 18 years of age. If these legal formalities are not complied with, the will is likely to be invalid and of no effect.

Testamentary capacity: a testator must have the required mental capacity to make a valid will. If, for instance, they are very ill or under the influence of drugs, or even in an extreme state of bereavement, they may not have testamentary capacity. The testator must be of sound mind, and understand what they are doing and the consequences of it.

Coercion, fraud or duress: if a will is found to have been made while the testator was under undue influence, or the will was the result of fraud or duress, the will will be invalid. However, it is difficult to prove fraud, coercion and duress, as convincing evidence will be required. This includes evidence of a fraudulent signature, evidence of circumstances in which the testator made a will disinheriting family members in favour of an unrelated major beneficiary, evidence of threats against the testator, and evidence of the health of the testator.

I’m family but have been disinherited: can I claim?

The fact that you have not been provided for under the will does not mean it is necessarily invalid, nor does it mean you can automatically claim reasonable provision from the estate. Under UK law, testators can effectively leave their estate to whoever they chose. The main exception is where the testator was financially maintaining a ‘dependent’ at the time of their death and that dependent is not provided for, or sufficiently provided for, under the will.

If you can show you were financially dependent on the deceased but you have been disinherited, or the will makes insufficient provision for you, you may be able to make a successful claim under the Provision for Family and Dependants Act 1975.

Recent case law involving claims for financial provision has proved particularly generous to adult children of the deceased who were not actually being financial maintained at the time of death. This means even if you think you cannot make a claim, it is worth seeking legal advice before ruling it out.

How can I claim inadequate provision?

If you were a dependent or a child of the deceased at the date of death, you may be able to make a claim under the 1975 Act. To have the right to make a claim, you must have been married to the deceased (or in a civil law partnership) at the time of their death, or have been cohabiting for two years previously; or you were a dependent child of the deceased (whether or not an adult).

You will need to show you have not been adequately provided for under the terms of the will. If you can satisfy the court of this, the court will then decide how much is reasonable to award you in the circumstances, bearing in mind various factors including your needs, the size of the estate, and the rights of any other beneficiaries.

How do I contest the will?

You will need to engage a specialist wills dispute solicitor. It is important to act quickly as these claims are subject to time limits, and the Probate Registry will have to be notified to prevent the estate being distributed. Importantly, you will need advice as to whether or not your potential claim has a reasonable chance of success because of the costs involved.

If you proceed, you need to collect as much evidence as possible to support your claim. Your solicitor can make the necessary enquiries of witnesses who can comment on the deceased’s state of mind at the time of making the will, obtain medical records, and investigate any suspicious circumstances surrounding the will.