A challenge to the validity or fairness of a will is one of the more sensitive areas of legal practice. The family circumstances surrounding a contested estate are often as significant as the legal ones, and the decision to proceed requires both careful consideration of the merits of the claim and a clear-eyed assessment of the procedural and financial implications.
In this article, Thomas Lees sets out the principal legal grounds on which the validity of a will can be challenged in England and Wales, and the related route of claiming financial provision from an estate under the Inheritance (Provision for Family and Dependants) Act 1975.
Lack of testamentary capacity
The capacity required to make a valid will is set out in the long-standing test in Banks v Goodfellow (1870) LR 5 QB 549. The testator must have understood the nature of the act of making a will and its effects, the extent of the property of which they were disposing, and the claims of those who might expect to benefit. Where there is evidence that the testator did not meet that standard at the time the will was executed – most commonly because of dementia, mental illness, or the effects of medication – the will may be set aside.
A capacity challenge requires medical evidence relating to the testator’s condition at the relevant time, and is typically supported by witness evidence from those who were in contact with the testator around the date of execution. The burden of proof falls initially on the party seeking to uphold the will, but shifts where the will is rational on its face and was duly executed.
Undue influence
A will procured by undue influence is invalid. The legal test in the will context is more demanding than the equivalent test in contracts and lifetime gifts: the influence relied on must amount to coercion, in the sense that the testator’s free will was overborne. Persuasion, even strong persuasion, is not sufficient. There is no presumption of undue influence in the will context, and the party making the allegation must prove it on the balance of probabilities.
Undue influence claims often arise where the testator was elderly, isolated, or dependent on a beneficiary, and where the will departs significantly from a previous testamentary pattern. They are typically the most difficult challenges to evidence and the most costly to pursue.
Want of valid execution
A will must comply with the formalities set out in section 9 of the Wills Act 1837. The will must be in writing, signed by the testator (or by another person at the testator’s direction and in their presence), and the signature must be made or acknowledged in the presence of two witnesses who are present at the same time and who each sign the will in the testator’s presence. A will that does not satisfy each of these requirements is invalid.
A challenge on the ground of want of execution is generally evidenced by the testimony of the witnesses to the will and by the original document. Where the original cannot be produced, additional evidential considerations apply.
Lack of knowledge and approval
Even where a will has been validly executed and the testator had capacity, the will may be set aside if the testator did not know and approve of its contents. This ground typically arises where the will was prepared by a beneficiary, where the circumstances of execution suggest that the testator did not understand what they were signing, or where the will contains provisions that the testator could not reasonably have intended.
Fraud and forgery
A will procured by fraud, or a will that has been forged, is invalid. There is no time limit on a fraud or forgery challenge, although the practical difficulties of evidencing the fraud may increase over time. Forensic handwriting evidence and document examination are often required.
Claims under the Inheritance Act 1975
The Inheritance (Provision for Family and Dependants) Act 1975 is distinct from a challenge to the validity of a will. The Act allows certain categories of applicant – spouses, civil partners, former spouses, cohabitees in some circumstances, children, and those who were maintained by the deceased – to apply to court for reasonable financial provision from the estate where the will, or the intestacy rules, do not make adequate provision for them. Claims under the Act must be brought within six months of the grant of probate.
Speak to Ai Law
Ai Law acts for individuals considering contesting a will and for those defending the validity of a will or an estate against challenge. Our contentious probate team advises on the merits of a potential claim, on the procedural steps required, and on the funding arrangements available, including conditional fee agreements where appropriate.
To discuss a potential case in confidence, please contact a member of our team.
This does not consist of legal advice and cannot be relied upon. If you need advice please contact us and we will be happy to help.