Contentious Probate

Challenging a Will

Claims to challenge the validity of a will can be brought for a variety of reasons. From disputes regarding the formal process of drafting and executing a will, to more serious challenges on the basis of fraud, disputes of this nature require thorough investigation and expert input in order to reach a satisfactory conclusion.

We have experience of both challenging and proving (i.e. defending) the validity of wills in a variety of circumstances. As well as understanding the legal factors, we appreciate that challenges to wills often involve a strong emotional strain for our clients. We are available to assist you in reaching the right outcome, not only for you but also to reflect the wishes of the deceased.

How a challenge to a will would be brought or defended would depend upon the specific facts of the matter. Whether it is reviewing the circumstances of the will drafting via Larke v Nugus requests, obtaining and considering the medical records of the deceased or obtaining expert opinions on the veracity of executed documents, we are here to advise you on what steps to take to ensure that the genuine intention of your family member or loved one is carried out.

Whether you are the executor or beneficiary of a will that is being challenged or if you believe that a will is invalid and you wish to challenge it, we can advise you on the best way to proceed through what can be a complex area of law.

Our recent experience includes:

• Acting for the family of the deceased in a challenge where the will was executed by the deceased in prison;
• Advising on a challenge to a will executed whilst the deceased was in the hospital and receiving end of life care; and
• Advising the executors on a challenge to a will on the grounds of undue influence and lack of capacity.

Under English law, wills can be challenged for any one or more of the following reasons:

• Lack of proper formalities
• Lack of capacity
• Lack of knowledge and approval
• Fraud or undue influence
• Subsequent revocation

Lack of proper formalities

For a will to be valid it must comply with the Wills Act 1837.

The will must be in writing and signed by the person making it (or, if they cannot sign then by someone else on their behalf and at their direction) in a way that it is clear they intended the signature to validate the will. The signature must be made or acknowledged in the presence of two or more witnesses at the same time. Both witnesses must sign the will or acknowledge his signature in the presence of the person making the will and of each other.

During the Covid-19 pandemic, there have been changes to how the Wills Act 1837 is to be interpreted, meaning that witnesses no longer need to by physically ‘present’, but can witness the execution of a will via video conferencing technology. For further information on the latest changes, please see our will writing page.

The legal presumption is that if a will appears to have been completed correctly it has been unless there is evidence to the contrary.

Lack of capacity

It is essential that, at the time of making the will, the person making it understands and approves the nature and effects of the will, knows the extent of the property he holds, appreciates the impact of including or excluding certain people and is not suffering from any mental incapacity which may influence their views.

A person is presumed to have mental capacity unless there is evidence otherwise. Once a person is found to lack mental capacity it is presumed that state of affairs will continue unless there is evidence to the contrary. This is commonly due to Alzheimer’s or other forms of dementia.

Lack of knowledge and approval

A person must know that they are signing their will and they must approve of the contents of that will.

A number of problems can arise where there is a mistake in the will, or where the person making the will suffers from a condition such as blindness or deafness or illiteracy or where the circumstances surrounding the signing of the will are suspicious.

Undue influence

In order to challenge a will on the basis of undue influence, it must be shown that the will maker was placed under such pressure that they were coerced (as opposed to merely persuaded) to draft their will in certain way.

There are no presumptions of undue influence and it is for whoever alleges it to prove it. This, along with the high threshold of proof required to overturn the will, can make claims of undue influence difficult to maintain.

A will can be challenged if it is believed that it was forged or fraud has taken place. This could take place both in relation to some form of undue influence or to the documents themselves (for instance, a forged signature).

Subsequent revocation

A will can be intentionally revoked (cancelled) by the person who made it by destroying the document with the intention that it is revoked, by written confirmation that it is revoked or by signing a later will which revokes earlier wills.

A will is also revoked by entering into a marriage or civil partnership unless the will is specifically worded so that it will not be revoked by an intended marriage or civil partnership.

Successful Challenges to a Will

If a will is found to not be valid for any one or more of the reasons set out above it will be set aside and the estate will pass in accordance with any valid earlier will, or in the absence of any valid earlier will, in accordance with the rules of intestacy.

Preventing Challenges to a Will

The most effective way of dealing with challenges to a will is to prevent them from taking place. A professionally drawn up will be prepared by a regulated legal advisor who makes appropriate checks and keeps relevant records is much less likely to be successfully challenged than a homemade will. If you are concerned that your will might be challenged we can offer advice as to how best ensure that it will be upheld and your wishes will be followed.