What Are the Grounds for Contesting a Will?

Will disputes are becoming increasingly common. The law in England & Wales recognises several grounds for contesting a will which are;

• Lack of testamentary capacity,
• Undue influence,
• Improper execution,
• Lack of knowledge and approval
• Fraud or forgery

Lack of Testamentary Capacity

The test for testamentary capacity is well established in Banks v Goodfellow (1870). To have capacity, the testator must:

• Understand the nature and effect of making a will;
• Understand the extent of their property;
• Be able to comprehend and appreciate the claims to which they ought to give effect; and
• Not be suffering from any disorder of the mind that influences their decisions

This remains the guiding authority, supplemented in modern practice by the Mental Capacity Act 2005.

Does dementia automatically invalidate a will?

Conditions such as dementia, Alzheimer's disease, or severe mental illness can impair capacity. However, a diagnosis alone does not automatically invalidate a will. A testator may still have capacity at the time a will is executed.

The key question is whether the testator satisfied the legal test at the particular time the will was made.

What evidence can help establish testamentary capacity?

Medical evidence is often helpful in showing cognitive function at the relevant time. Equally, a solicitor’s detailed attendance note, recording discussions, instructions, and observations about capacity, can strongly support a finding of capacity and demonstrate compliance with the “Golden Rule” (obtaining medical opinion where capacity is in doubt).

Example: Dementia and testamentary capacity

Margaret has dementia and signs a new will leaving most of her estate to a neighbour. The diagnosis of dementia alone is not sufficient to demonstrate that she did not have testamentary capacity to execute a valid will. A court will focus on Margaret’s understanding when she gave instructions and signed the will, i.e. did she know she was making a will, appreciate what she owned and understand the claims of those she might normally consider.

Undue Influence

What is undue influence when contesting a will?

Undue influence occurs where the testator is coerced into making a will that does not reflect their true intentions. The burden of proof lies firmly on the person seeking to challenge the validity of the will.

Direct evidence of undue influence is rare. As such, claimants often rely on circumstantial factors, including:

• Isolation of the testator;
• Sudden or unexplained changes to a will;
• Dependency relationships; and
• Involvement of the alleged influencer in drafting the will.

The court will carefully evaluate whether the testator acted voluntarily. Key indicators are likely to include whether the testator obtained independent legal advice and whether the testator demonstrated consistent intentions over time.

Example: Undue influence and coercion

Asking an elderly parent to “remember who has looked after you” may amount to persuasion. By contrast, threatening to withdraw essential care unless the parent changes their will may support an allegation of coercion, particularly if the parent is isolated and dependent on the person making the threat.

Failure to Execute the Will Properly

When can a will be challenged because it was not executed properly?

The Wills Act 1837 requires a valid will must be:

• In writing;
• Signed by the testator (or by someone on their behalf in their presence);
• Intended to give effect to the will; and
• Witnessed by two independent witnesses present at the same time

If a witness to the will (or their spouse/civil partner) benefits under the will, the gift to that individual is void, although the will itself remains valid.

Example: Failure to execute the will properly

David signs a homemade will in his kitchen. A neighbour watches David sign the will, but the second witness signs later, after David has left the room. Even if the will accurately records David’s wishes, the fact that both witnesses were not present at the same time it likely to be sufficient to invalidate the will.

Lack of Knowledge and Approval

What does lack of knowledge and approval mean?

A valid will requires that the testator knew and approved its contents. Even where capacity exists, the will may be invalid if the testator did not fully understand what they were signing.

This may arises where:

• The will was prepared by a beneficiary;
• The testator was blind, illiterate, or frail;
• Complex or unexpected provisions are included; or
• Significant last-minute changes are made.

A solicitor’s involvement can help to establish a presumption of knowledge and approval, particularly if the will was read and explained to the testator.

Example: Lack of knowledge and approval

Penny fully understands the nature of a will and the extent of her estate, but signs a lengthy document prepared by a beneficiary without reading it or having it explained to her. Whilst Penny may have testamentary capacity, the will could be challenged on the grounds that Penny did not actually understand or approve the contents of the will.

Forgery or Fraud

When can forgery or fraud be grounds for contesting a will?

Forgery involves the falsification of a will, including:

• Forged signatures;
• Alterations made after execution of the will; and
• False documents.

In determining an issue of forgery or fraud a court will rely on expert evidence and analysis, including:

• Handwriting comparison;
• Ink and paper analysis; and
• Examination of the original will.

Forgery and fraud claims often occur in emotionally charged disputes, particularly among siblings or blended families, where mistrust and competing interests are common.

The burden lies on the party alleging fraud, and the standard is high. Courts require clear and convincing evidence given the seriousness of the allegation.

What is fraudulent calumny?

Fraud can also arise where a testator is misled by false information (known as fraudulent calumny). For example, if a beneficiary lies about another family member to influence the testator’s decisions.

Example: Fraudulent calumny

One sibling repeatedly tells their parent that another sibling has stolen money and wants no further contact with them. If the lie poisons the parent’s mind and causes the innocent sibling to be excluded from the will, the resulting provision may be challenged on the basis of fraudulent calumny.

Is an Unfair Will Enough to Contest It?

A surprising or seemingly unfair division of the estate does not, by itself, make a will invalid. The decisive question is whether there is a recognised legal ground supported by evidence from the period in which the will was prepared and signed.

Can More Than One Ground for Contesting a Will Apply?

Yes – the court can consider multiple grounds for contesting simultaneously. For example, an individual may have lacked testamentary capacity and been subjected to undue influence by a third party.

Who Can Contest a Will?

To contest a Will, you must have sufficient legal standing. You must therefore either be a beneficiary:

• Named in the current Will; or
• Named in a previous Will; or
• Under the rules of intestacy.

Where concerns arise before death, our guide to challenging a Will while the testator is still alive explains what can (and cannot) be done.

If you are also named as executor, our guide explains whether an executor can challenge a will and the duties and conflicts to consider before taking action.

Can someone named in an earlier Will challenge a newer version?

If you were named as a beneficiary under an earlier Will, you may seek to challenge the validity of a testator’s current Will, if you are either excluded from benefitting under the terms of the newer document or your entitlement is less than under the earlier one.

Are executors or beneficiaries allowed to bring a claim?

It is commonplace for an executor of a Will to also be named as a beneficiary. However, this can place an executor in a position of conflict, as they should remain neutral.

A beneficiary can, however, bring a claim against the estate, either to challenge the validity of a Will or to bring a claim for reasonable financial provision under the 1975 Act.

Where a conflict arises for an individual, between their role as executor and their wish to question the validity of the Will that appoints them, it may be appropriate for them to step down from the role of executor.

What Evidence Is Needed to Contest a Will?

Medical records, witness accounts, earlier wills, correspondence and a solicitor’s contemporaneous notes can all help reconstruct what happened.

Is Contesting the Validity of a Will the Same as Making an Inheritance Act Claim?

Separately a spouse, co-habitee, child or any other person who was treated as a dependant may claim that that the Will has failed to make reasonable financial provision for them and request that the court make provision from the Estate.

If the Will is valid but you have not been left reasonable provision, an Inheritance Act claim may be more suitable.

Claims under the Inheritance (Provision for Family and Dependents) Act 1975 for example, do not involve any challenge to the validity of the Will but seek the consent of the court to award the applicant provision from the estate. These claims must be brought within 6 months of the issuing of a Grant of Probate.

Are There Time Limits for Contesting a Will?

There is no time limit, however it is sensible to contest a Will as early as possible, and it is usually simpler to do so before the grant of probate has been granted. After the grant of probate has been issued, the executor can begin to distribute the estate in accordance with the terms of the Will.

Whilst it is possible to make a challenge after probate has been granted, it can be a more costly and complicated process. If there is a very significant delay then a court may invoke the doctrine of laches to prevent the validity claim from progressing.

Can a delay prevent a Will challenge?

The court can invoke the equitable doctrine of laches to prevent a claim from proceeding, where they consider there has been unreasonable delay on the part of the applicant and allowing a claim to proceed would impose unreasonable hardship on the beneficiaries.

Can a Will be challenged during the testator’s lifetime?

The validity of a Will cannot be challenged during the individual’s lifetime and any such claims must be pursued after they have died. There is however the possibility of making an application for a statutory will, which is a will approved by the court in circumstances where an individual has lost capacity and it can be demonstrated that the current position is not what they would have wished for.

What Happens if a Will Is Successfully Challenged?

What happens if there is an earlier Will?

If a challenge is successful, it will be set aside and the estate will be distributed in accordance with the previous Will or if there is no previous Will, the estate will be distributed under the rules of intestacy.

If the testator made several Wills, it may be possible to challenge the validity of the earlier Wills, providing that there are sufficient grounds to do so.

What happens if the estate has already been distributed?

If a claim is successful in such circumstances, the Grant will need to be revoked and beneficiaries contacted to return funds distributed or assets transferred to them from the estate.

What Should You Do if You Think a Will May Be Invalid?

For anyone considering a challenge, obtaining specialist advice early can help preserve evidence, identify the correct legal basis and avoid pursuing a grievance that does not amount to a sustainable claim.

How do you contest a Will?

If you believe that there are grounds to challenge the validity of a Will, you should enter a ‘caveat’ with the Probate Registry.

A caveat will prevent any application for a grant of probate being processed and it will provide you with an initial period of six months to investigate whether you have grounds to challenge the Will. Whilst the caveat lasts for a period of six months, it can be renewed at the end of the six-month period and there is no limit on how many times it can be renewed.

Once you are ready to proceed, a claim needs to be issued in court for a declaration that the Will is invalid.

Can you bring a claim to stop probate while investigating a Will dispute?

Once investigations have been completed, a court application can be made for a declaration that the Will is invalid.

How Can Someone Making a Will Reduce the Risk of a Later Dispute?

For anyone making a will, independent advice, careful execution and a clear record of the reasons for significant decisions provide the strongest protection against a later dispute.

Speak to Our Contentious Trusts & Probate Solicitors

If you are concerned that a Will may be invalid, early legal advice can help you understand whether there are sufficient grounds to challenge it, what evidence may be required and what steps should be taken to protect your position.

Our Contentious Trusts & Probate team is ranked Tier 1 in The Legal 500 for the North West, reflecting the team’s deep knowledge and recognised expertise in complex will, trust and estate disputes.

Our specialist solicitors advise beneficiaries, executors and families on challenges involving testamentary capacity, undue influence, lack of knowledge and approval, improper execution, fraud and forgery.

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