Can You Challenge the Validity of a Will When the Testator is Still Alive?

Can you challenge the validity of a Will before the testator has passed away? It’s a question that arises more frequently in families facing complex dynamics or concerns around vulnerability.

While the law generally prohibits contesting a Will during the testator’s lifetime, there are rare and important exceptions and knowing your options early could make a significant difference. In this article, we explore when and how such concerns may be addressed, including the legal framework for statutory Wills and early intervention routes where mental capacity or undue influence is at stake.

Challenging a Will while the testator is alive

You cannot challenge a Will under normal circumstances, including while the testator is alive. The simple reason is that a testator, during their lifetime, has the ability to amend, revoke or destroy their will, as they see fit. A Will speaks from the date of death, therefore any formal challenge will occur after the testator’s death. However, there a certain exceptions.

Exception: Statutory Wills

The main exception relates to statutory wills. These are wills to be approved by the Court of Protection, drawn up on behalf of an individual who lacks mental capacity during their lifetime. Parties impacted by the terms of a proposed statutory will, for example, close family members who would be intestacy beneficiaries if the statutory will were not approved, or beneficiaries under an existing will, can challenge the proposed statutory will before the Court of Protection.

Options during lifetime

However, beyond the limited scope of statutory wills, the fact that a testator has not died, may not stop interested parties from seeking to explore their options, when they may find out that a will has been altered during the testator’s lifetime.

Suspected lack of testamentary capacity

If there are concerns regarding a testator’s testamentary capacity during their lifetime, it may be possible to ask the testator to submit themselves to a health care professional’s assessment, with reference to the Banks v Goodfellow [1870] test. Private client practitioners should of course be aware of this good practice when taking instructions from testators in their advancing years. However, there is no requirement for a testator to agree, whether during the will drafting process or later, at the request of an interested party.

Concerns regarding undue influence

Where suspected undue influence is being applied upon the testator during their lifetime in relation to their testamentary wishes, practical options may involve making appropriate safe guarding reports to any applicable bodies who may have the authority to investigate depending on the circumstances (i.e. Social Services / Office of the Public Guardian etc).

Typically, where suspected undue influence is being applied, the influencer may seek to isolate the testator from their family and friends: breaking that pattern of behaviour could help to remedy the situation.

Conclusion

Although the law does not allow a direct challenge to the validity of a Will while the testator is alive, there are vital steps concerned individuals can take where capacity or coercion is suspected. 

Our specialist contentious probate solicitors offer expert advice on how to protect your interests, both now and in the future. If you are concerned about a loved one’s testamentary decisions or wish to understand your legal position, we’re here to help you navigate these issues with care and clarity.