Contesting a will - grounds, process and risks

Summary

Disputing a will can be a complex and emotionally charged process. In England and Wales, a will can be challenged on several legal grounds, including lack of testamentary capacity, lack of knowledge and approval, undue influence, fraud/forgery, or failure to meet the legal formalities upon signing a will. Anyone who was connected to the testator who was expecting to be left something specific by the testator in their will due to a promise by the testator during their lifetime or under the terms of a previous will. This could be a family member, friend or even a charity. * Beneficiaries named in the current will \- these individuals have an interest in ensuring the will is valid and properly executed. * Beneficiaries who were in a previous will, but excluded in a later will – these beneficiaries may wonder why the testator departed from a previous will without explanation and may suspect ‘foul play’ or issues with testamentary capacity. * Lack of valid execution \- the Wills Act 1837 sets out strict requirements for making a valid will. The most common issues which make the will invalid include the testator not signing the will in the presence of two witnesses and the two witnesses.

Key information

• Beneficiaries named in the current will \- these individuals have an interest in ensuring the will is valid and properly executed.
• Beneficiaries who were in a previous will, but excluded in a later will – these beneficiaries may wonder why the testator departed from a previous will without explanation and may suspect ‘foul play’ or issues with testamentary capacity.
• Lack of capacity \- the testator must have sufficient mental capacity at the time of making the will and must understand the impact of their decisions, the extent of their estate and not be suffering from any disorder of the mind.
• Lack of knowledge and approval \- the testator must fully understand and approve the contents of the will. For example, their mental capacity may have changed between the time they initially consulted a solicitor and the time when the will was drafted and explained to them prior to execution.
• Fraudulent or forged will \- alleged in approximately 5% of contested will cases. Evidence is needed by experts including document examination, analysis of signatures, paper and ink dating, handwriting comparison and document forensics.
• Undue influence \- witness evidence from those who observed unusual pressure or control over the deceased, financial records showing sudden or unexplained transfers, gifts, or changes benefiting one party and/or emails, letters, or recordings indicating coercion or manipulation.
• Lack of proper execution \- the will itself is needed to check for missing signatures, improper witnessing, or procedural errors and/or statements from witnesses who were present during the signing and/or solicitor’s file (if drafted professionally) confirming or disproving correct execution.
• Fraud or forgery – the will itself is needed along with handwriting analysis to compare the will’s signature to known genuine samples of the testator (driving licence, bank cards, passport, letters etc), expert forensic reports on ink, paper, and document alterations, witness evidence from individuals who suspect the will was not signed by the testator.
• Promises not reflected in the will (promissory or proprietary estoppel claims) \- emails, letters, text messages or recordings where the deceased made financial promises, witness statements from friends or family who heard the deceased make commitments and evidence by the claimant that they relied on these promises to their detriment.
• If you do not have the will and no probate has been granted yet, register a standing search at the Probate Registry where you will be sent a copy of the probate (and will) if granted within the next six months – cost £3.00. Can be renewed every 6 months.
• If you do not know if probate has been granted, register a general search at the Probate Registry for a copy of the will and probate – cost £16.00
• Review grounds for challenge

Practical guidance

• Source: Contesting a will - grounds, process and risks

Related topics

More in this area

• Can A Beneficiary Of A Will Be Under 18?
• Can I gift my house to my children?
• Deed of variation for a will
• Discretionary Trusts In Wills
• Examples of accountant negligence