If you're searching for clear, reliable guidance on how to contest a Will, you are not alone. Disputes over Wills can arise for many reasons, from concerns about undue influence or lack of capacity to suspicions of fraud or procedural irregularities. Whether you’ve been unexpectedly excluded or believe a Will does not reflect the deceased’s true intentions, it’s essential to understand your legal options.
In this article, Contentious Trusts & Probate Partner, Vlad Macdonald-Munteanu explains how to challenge a Will in England and Wales, including the legal grounds, evidential requirements, potential risks, and why early expert advice is critical to protecting your interests.
How do you contest a Will in England and Wales?
To contest a Will is to challenge its validity, typically on the basis that it does not reflect the true intentions of the deceased or that it fails to comply with the legal requirements.
The first step is to seek advice from a solicitor experienced in contested probate matters, who can assess the facts of your case and advise whether there are legitimate grounds to bring a challenge as well as lodge a caveat.
Initial steps often involve gathering evidence about how the Will was prepared, signed, and witnessed, and reviewing the medical records of the person who made the Will.
If there are suspicions about the circumstances, such as pressure from another individual, or concerns that the person did not understand the content of the Will, a solicitor may carry out further investigation, including obtaining the solicitor’s file who drafted the Will, assuming it was professionally prepared.
In many cases, early negotiation or mediation is preferable to litigation. A prompt settlement can reduce costs and avoid deepening family disputes or a breakdown in relationships.
However, where court proceedings are necessary, our solicitors will work alongside specialist barristers to guide you through each stage of the process and ultimately, to trial.
Why would you contest a Will?
Reasons for challenging a Will can be wide ranging, albeit typically, it is because an individual is disappointed by the terms of the Will, for example, they do not derive a benefit, or a sufficiently large benefit, under the current Will.
The effect of a successful challenge results in the deceased’s prior Will taking effect: therefore a beneficiary of the prior Will, can contest the current Will (or numerous Wills, until they reach a prior Will which confers a financial benefit on them or they benefit under an intestacy).
Other reasons can include an individual’s expectations having not been met, concerns about the capacity and/or vulnerability of the person making the Will (known as the testator), the impact of second marriages and blended families, sibling rivalry, lifetime gifts being made to one family member over another and ultimately, a perception of unfairness.
Of course, these are simply some of the reasons, rather than valid grounds, for challenging a Will.
What are the legal grounds for making a challenge?
Failure to comply with legal requirements
If the Will has not been correctly signed or witnessed in accordance with the Wills Act 1837, it may be deemed invalid.
Lack of testamentary capacity
The testator must have been of sound mind at the time the Will was created. If they did not understand what they were doing or the consequences of the document, the Will may be open to challenge.
Undue influence
If someone else exerted pressure on the person making the Will, often in private, and persuaded them to change their Will against their true wishes, this could be grounds for contesting it.
Fraud or forgery
If the Will, or a signature on it, was forged, or if the testator was deceived or misled into altering their Will, it may be set aside by the court.
Lack of knowledge and approval
Even if a Will was properly signed and witnessed, it may be challenged if the person making it did not know or understand what the document said, particularly if there are suspicious circumstances.
Each case depends on its own facts. If you are concerned about the validity of a Will, we can carry out an initial investigation and advise on your prospects of success and the most appropriate next steps.
What evidence do you need?
The evidence depends on the legal ground pursued to challenge the validity of a Will: for example, under lack of testamentary capacity, a favourable expert report from a consultant old age psychiatrist can prove decisive.
Alternatively records such as social or nursing records can document the testator’s words and feelings, normally in a safe environment. These records can sometimes provide an invaluable insight, especially if undue pressure has been applied upon the testator and they have openly discussed it with a health care professional.
Evidence, from the witnesses to the Will, in the form of a witness statement supported by a statement of truth, is also frequently used where there are concerns about the legal formalities having not been complied with.
Our solicitors recently helped a client successfully challenge the validity of the Will, by contacting the witnesses to the Will in question, who confirmed that they did not see the testator actually sign the Will, thus invalidating it.
The testator later died on the same day. By making early contact and providing our client’s opponents with this witness evidence, our solicitors swiftly achieved our client’s objective. It provided early closure and allowed our client the time and space to grieve without the worry of future legal action.
Is there a time limit?
Strictly speaking, there is no statutory time limit to challenge a Will, albeit there are some practical issues to consider when looking to challenge a will years after it has been proved.
For example, if the estate has been distributed, it may be hard to trace the estate assets into other hands. It may also be difficult to contact the witnesses, to either the will, or to the testator in general, who potentially could provide helpful evidence.
Securing records may also be difficult years after death, for example, will making files and medical records.
If a Will challenge was intimated but then a lengthy period of time passed before any further action was taken, this can potentially prove fatal to a prospective claimant. While each case turns on its own facts, our specialist solicitors have first-hand experience dealing with these issues to trial, you can read the full judgment of a case that we were involved in here.
Can multiple people make a claim?
Yes, multiple people can contest a Will, albeit they need to have the correct legal standing, for example being beneficiary under an earlier will, or be an intestacy beneficiary, if there is no earlier will.
Ordinarily though, if multiple people are contesting a will, given their shared objectives and outcome if a Will is held invalid by a court, usually one firm of solicitors will act, in order to minimise costs.
Of course, if multiple people are making a claim, albeit under different grounds and potentially seeking to challenge more than one Will, then separate representation may be required. In those circumstances, the challenges can range from effective communication and sharing of evidence between the claimants, as well as increased legal costs.
Are there any common issues that high-net-worth estates face?
One of the main issues that high net worth estates face is ensuring effective management, while the claim is brought and heard.
High value estates tend to include a variety of assets, ranging from significant property, to land and businesses, whether they be sole traders, part of a partnership or limited companies, located in England and Wales or abroad.
Ensuring that they are effectively managed is crucial, so that the value is retained or even improved.
For example, where a testator held a significant shareholding in a business, reviewing the company’s articles of association, as well as liaising with the directors, will be paramount to establish prior rights and responsibility for ongoing management and operations.
Similarly, ensuring that liabilities, for example, inheritance tax is paid or managed as effectively as possible, should be a key consideration for executors.
What happens to an estate while a challenge is being made?
Normally, a caveat is lodged while a Will validity challenge is brought. This means that a full grant of probate cannot be issued while the caveat is in place. A grant of probate is, in most circumstances, required in order to complete an estate administration.
Occasionally, executors who cannot obtain a full grant of probate normally pause any estate administration work, albeit this is not always the most sensible move, especially if there are assets that are falling into disrepair or could be used to generate income for the estate.
An executor can obtain a limited grant when a caveat is in place. Their powers are normally limited (hence the name) to collecting in assets, for example, selling a property or stocks & shares, and paying off liabilities, for example mortgages/debts or even inheritance tax.
Put simply, when a Will is being challenged, an estate can be partially administered while the claim is brought. Ultimately, executors need to consider their duties and obligations, as well as explore how the estate can be best preserved and utilised, pending the outcome of the claim.
How does charitable giving complicate Will disputes?
Charities, understandably, wish to secure any charitable gift left in a Will, given that charitable legacy income is a key income stream, allowing them to give effect to their charitable causes.
Charitable trustees need to balance the retention of their legacy and their mission statement versus their legal spend, as well as reputational and public perception. Often, charities may have no prior knowledge or connection with the person that created the Will, so they have to spend time establishing the facts and evidence, before any defence can be raised.
Conversely, where a charity establishes that they were a beneficiary under an earlier Will, and the prospects of success appear reasonable, they may be encouraged to pursue a Will challenge.
Additionally, executors need to be aware of special rules which apply to charitable gifts. For example, there is no inheritance tax on charitable legacies and a reduced rate of 36% inheritance tax (versus the normal 40%) applies to the balance of an estate, if more than 10% of the estate is left to charity.
What are the cost risks and how can they be managed?
The general principle is that the losing party pays the winning party’s costs (as well as their own) for live court proceedings. Contesting a will to a final hearing and losing, normally results in the claimant having to pay a large proportion of the successful defendant’s costs. These costs could easily run into six figures, while the unsuccessful claimant would also be liable for their own costs too.
Effective management of the costs risk is therefore key for any prospective claimant and defendant.
Firstly, making Civil Procedure Rule Part 36 (“P36”) compliant offers, which can invert the general costs rule, is important to consider at an early stage. For example, if a claimant makes a P36 offer, it is rejected by the defendant and then a court awards the claimant more than the terms of the rejected offer, the defendant will have to pay the claimant’s costs on a penal basis, from the expiry of the rejected offer, to trial.
Secondly, the court’s can tweak the general costs rule, if they consider that the testator was the true cause of the litigation. For example, where their actions and behaviour caused serious concerns about their testamentary capacity.
In this case, the estate would pay the parties costs.
Another circumstance is where the court considers that it was reasonable for the parties to investigate the prospects of their claim, such that no order as to costs is made i.e. the parties only have to pay their own costs.
These two circumstances are colloquially known as the Spiers v English costs rules, from the 1907 case. For a modern day application of these rules, you can read the judgment in Kostic v Chaplin & others [2007] EWHC 2909 (Ch) here.
Thirdly, at the pre-action stage (i.e. before court proceedings) there is no rule which forces the losing party to pay the winning party’s costs. Effective engagement and negotiation at an early stage can help mitigate the costs risks.
Can you contest a Will after Probate is granted?
Yes, it is possible to challenge a Will after probate is granted, albeit a claim to revoke the grant of probate must also be set out at the same time.
Of course, the question of timing remains, as the issue of a grant of probate can make it harder to stop an executor distributing the estate, while a claim is investigated and pursued.
Can an Executor dispute a Will?
Yes, albeit they cannot continue in their role as executor and claimant at the same time as their duties to the beneficiaries and personal interests will conflict.
An executor therefore has to renounce (i.e. give up their executorship) before being able to pursue a claim.
Again, the main issue is that of timing and work undertaken by the executor to date.
For example, if an executor has undertaken no estate administration work, they can simply sign a renunciation. If they have commenced work as an executor, for example, collecting assets or forgiving debts owed to the testator, then they will need court approval to step away.
Therefore it is sensible for an executor looking to challenge the validity of a Will to seek early legal advice before taking any further steps.
How do trusts and offshore arrangements affect the ability to make a claim?
The creation of trusts in Wills subject to challenge can create unexpected or complex issues. For example, where a Will creates a discretionary trust (i.e. the trustees have full discretion) the potential objects (i.e. people who could benefit) do not have a fixed interest. As such the trustees need to decide whether they ought to defend any claim made against the trust.
If they do, they should consider the potential objects’ view and agreement that their legal costs can be met from the trust, if they are successful in upholding the validity of the will. Alternatively, it may be that the trustees need to seek court approval of defending or bringing a claim, as well as for the recovery of their costs from the trust.
If the trust does not have any cash, it may be that the trustees need to consider alternative funding options, which could include a “no win, no fee” agreement, subject to an assessment of the merits of the case and costs. Our specialist solicitors have experience dealing with these complex issues.
In terms of offshore arrangements, the key early issues to establish are:
- the location of the assets;
- jurisdiction; and
- domicile of the testator.
Answering these questions will speak to the applicable laws and appropriate country to bring the legal claims in. Where assets are located in a different jurisdiction, it is important to establish whether those assets pass under the laws or that jurisdiction of the laws of the country in which the deceased resided or was domiciled.
There may also be different taxes applicable to those assets and where tax is charged in two jurisdictions on the same asset, double taxation treaties need to be checked to see which tax applies.
Get in touch
If you have doubts about the validity of a Will or believe you have grounds to contest its terms, early legal advice is crucial. These matters can move quickly and delaying action may compromise your position.
Our Contested Wills team specialise in high-value, contentious probate cases and have a proven track record of resolving complex disputes with discretion.
Whether your concerns relate to undue influence, capacity, forgery, or unfair distribution or any other matter, our specialist solicitors will assess your prospects of success and guide you through the most appropriate course of action.
Key Contact
Vlad Macdonald-Munteanu
Contentious Trusts & Probate Partner
Vlad is a Partner in the Contested Wills, Trusts and Estates team. His expertise lies in the resolution of contentious probate matters, and he is recommended in both Legal 500 and Chambers & Partners.
