When can a will be challenged?

There is often confusion concerning the circumstances in which a will can be challenged. Many people believe that a will can be challenged simply because they perceive it to be unfair or because they feel a sense of injustice in being excluded from a will.

It is a well-established principle of UK law that a person is free to leave their estate to whoever they wish (the principle of testamentary freedom). However, if a person can prove one of the grounds for contesting a will, the disputed will would be declared invalid.

What are the grounds for contesting a will?

  • Lack of testamentary capacity;
  • Lack of knowledge and approval;
  • Undue influence;
  • Invalid execution; and
  • Forgery or fraud

Lack of testamentary capacity

In order for a testator to make a valid will, they must have the necessary testamentary capacity. The legal test for testamentary capacity is laid out in the longstanding decision in Banks v Goodfellow (1870) LR5 QB549 which confirms that the testator has testamentary capacity if they:

  • Understand that they are making a will and the effect of that will;
  • Know the nature and value of their estate;
  • Understand the claims to which they ought to give effect (i.e. understanding the consequences of including/excluding certain people in their will); and
  • That they are not suffering from any disorder of the mind that would poison their affections, pervert their sense of right, or prevent the exercise of their natural faculties.

Lack of knowledge and approval

The testator must have knowledge of, and approve the contents of their will. In order to successfully contest a will on this ground, it must be proved that the testator was either not aware of the contents of their will or that the circumstances in which the will was prepared and executed were suspicious. Examples of suspicious circumstances could include where the names of certain beneficiaries were spelt incorrectly in the will or where there was a significant delay in the will coming to light after the testator’s death.

Undue influence

Undue influence basically means that a testator has been unlawfully pressured into making a will by coercion or by fraud.

The party relying upon this ground would need to prove that the testator was influenced to the point that their free will was completely oppressed. Simply suggesting to a testator that they make a certain provision in their will is not enough to prove undue influence.

The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a vulnerable or sick person may be more easily overborne than someone of stronger mind.

Invalid execution

When it comes to the execution of a will, there are strict rules that must be adhered to if the will is to be valid. Wills must be signed and witnessed correctly and if this does not happen, the will could be contested.

Forgery or fraud

Relying solely on fraud as a ground to challenge a will is very difficult because the deceased would normally be the only witness to the relevant facts.

In order to prove that a will has been forged, examples of the deceased’s signature from around the time as the disputed will need to be produced.  A handwriting expert will be involved to confirm whether the signature is genuine or a forgery.

Who can contest a will?

The party challenging the will would need to be someone who stands to benefit in the event that the disputed will was declared invalid. This means that they would either be named as a beneficiary in an earlier valid will executed by the testator or a beneficiary by virtue of the intestacy rules.

If you believe that you have grounds to contest a will or if you are in a position where you need to defend a challenge to a will, speak to our specialist will disputes solicitors. We offer an initial free telephone consultation and in many cases we can offer “no win no fee” arrangements.