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Contesting a Will Solicitor

Contesting a Will might be an option for you if a loved one has passed away and you do not think that their Will reflects their true intentions. Our expert solicitors have significant expertise to help you explore whether to challenge a Will if you haven’t been left what you expected, or if you have been completely left out of a Will.

What are the grounds for contesting a Will?

If you think that the Will is wrong in some way, there are a number of potential grounds to consider:

  • A lack of testamentary capacity — when the person making the Will did not have the mental capacity required to make a Will;
  • A lack of due execution — when the person did not meet the required formalities to make the Will, for example where it has not been signed or witnessed correctly;
  • A lack of knowledge and approval — when the person did not understand the meaning or content of the Will;
  • Undue influence or duress — when a person or people put pressure on the person making or changing their Will;
  • Fraud or forgery — when the signature on the Will was forged or changes were made to the Will without a person knowing;
  • Rectification and construction — if the Will is unclear or does not carry out a person’s wishes.

A Will dispute might also arise in other ways, for example:

  • It might be that you are disappointed that the person did not leave you what you hoped for. You may be able to explore an Inheritance Act claim to request that reasonable financial provision is made for you.
  • The person who has passed away promised you something before they died and that has not been given to you. You may be able to consider a proprietary estoppel claim.
  • The executors, who are the people appointed to deal with the estate, are not acting how they should; for example, by not giving you information you are asking for. Find out further information on Contentious Probate.
  • A solicitor or other professional has not acted properly.
  • When Statutory Wills are made and/or the Court of Protection is involved

How to contest a Will

Our expert disputed wills solicitors can guide you if you think one of the above grounds might apply. We can also help you if you want to defend a claim being brought by someone else in a Will dispute.

Frequently asked questions

  • How would a Will be challenged on Capacity?

    A person making a Will must have the requisite mental capacity to do so. Testamentary capacity is the term used to describe a person’s legal and mental ability to make a valid Will.

    A person needs to understand the nature and effect of making a will, and the extent of the property/assets they are leaving in their Will. They should understand the impact the will has on the people who may inherit and must not have a ‘disorder of mind’.

    If that is not the case, the Will may be invalid, in which case a previous Will takes effect. If there is not an earlier valid Will, then the person’s estate will be distributed according to the Intestacy Rules. These rules set out who will inherit where there is no Will.

    If you think that the person was living with a medical condition when they made the Will, which might have impacted on their capacity (for example, dementia or Alzheimer’s disease) then you may want to explore contesting a Will.

  • When is a Will valid and how could a Will be challenged on a lack of Due Execution?

    For a Will to be valid:

    • it must be in writing and signed by the person making it, or by some other person in their presence and by their direction;
    • the person must have intended by their signature to give effect to the Will;
    • the signature must be made or acknowledged by the person in the presence of two or more witnesses present at the same time; and
    • each witness either—
    • attests and signs the Will; or
    • acknowledges the testator’s signature in the presence of the testator, but not necessarily in the presence of any other witness.

    These are the formalities set out in section 9 of the Wills Act 1837 and, if one or more of them is not met, a Will may be held to be invalid.

  • How would a Will be challenged due to a lack of Knowledge and Approval?

    A person making a Will must have understood and approved the contents of the Will. 

    Some examples of where a person may not have understood and approved their Will include where:

    • a person is paralysed, and cannot speak or write;
    • a person is deaf or hard of hearing;
    • a person is blind or illiterate;
    • a person has reduced mental capacity;
    • a Will has been signed by someone other than the person making the Will;
    • there are suspicious circumstances surrounding the preparation of the Will, for example:
    • where the Will was drawn up by or with involvement of beneficiaries;
    • where the Will was prepared by untrained persons;
    • the presence of mistakes and unusual clauses;
    • a rushed signing of the Will;
    • a lack of gifts to family/persons who might be expected to receive; and
    • the presence of gifts to persons with whom the person making the Will had a poor relationship.
  • How would a Will be challenged on Undue Influence/Duress?

    If the person making the Will has been so dominated that the Will has not been made of their own volition, the Will may be held to be invalid. Coercion/influence can be physical violence or verbal intimidation and can include where someone makes untruthful accusations about other beneficiaries.

    To prove that a person has been subject to undue influence, there must be clear evidence of that influence, which proves that if the person were alive, they would say that the Will was not their wish, but they had no option but to do it as a result of the influence being exerted upon them.

  • How would a Will be challenged on Fraud?

    Fraud is an intentional deception made by a person for their own gain or to damage another individual. In the context of Will disputes, this is usually where someone believes that a Will made by a person does not contain the Testator’s true intentions and the Will is accordingly invalid. Some examples can include circumstances where:

    • family members who have not been named in a Will have destroyed the Will, with the intention of inheriting under a previous Will or the Intestacy Rules;
    • a person’s signature on the Will has been forged;
    • where a person was tricked into signing a document not knowing that it was a Will.
  • How would a Will be challenged on Forgery?

    If it can be proved that a Will has been forged or the signature of the person allegedly making the Will has been forged, this will result in the Will being invalid. 

    Evidence will often be obtained from a handwriting expert, and they will ideally consider a number of the person’s signatures in order to prepare their report.

    There are some key things to look out for in forgery cases:

    • The person executed their Will immediately before their death;
    • The person (or the forger) has executed multiple Wills leading up to their death;
    • The person leaves a large gift to whoever drafted the Will or benefits one person to the exclusion of others; or
    • The person has left a close person out of their Will – for example, a child or husband/wife/civil partner, and the Will benefits non-relatives.

Key contacts

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David McGuire

Principal Associate

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