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Disputing a will can be a complex and emotionally charged process. In England and Wales, a will can be challenged on several legal grounds, including lack of testamentary capacity, lack of knowledge and approval, undue influence, fraud/forgery, or failure to meet the legal formalities upon signing a will.
Anyone who was connected to the testator who was expecting to be left something specific by the testator in their will due to a promise by the testator during their lifetime or under the terms of a previous will. This could be a family member, friend or even a charity.
Beneficiaries named in the current will - these individuals have an interest in ensuring the will is valid and properly executed.
Beneficiaries who were in a previous will, but excluded in a later will – these beneficiaries may wonder why the testator departed from a previous will without explanation and may suspect ‘foul play’ or issues with testamentary capacity.
Lack of valid execution - the Wills Act 1837 sets out strict requirements for making a valid will. The most common issues which make the will invalid include the testator not signing the will in the presence of two witnesses and the two witnesses not signing in each other’s presence or missing or forged signatures. Gifts to certain beneficiaries may fail if improper amendments are made to the will after signing it without proper witnessing or when a witness is not independent and the same witness or their spouse/civil partner receives a benefit under the will. These types of issues are often associated with homemade wills when no legal advice has been obtained.
Lack of capacity - the testator must have sufficient mental capacity at the time of making the will and must understand the impact of their decisions, the extent of their estate and not be suffering from any disorder of the mind.
Lack of knowledge and approval - the testator must fully understand and approve the contents of the will. For example, their mental capacity may have changed between the time they initially consulted a solicitor and the time when the will was drafted and explained to them prior to execution.
Undue influence – this occurs when the will was made or changed under pressure or coercion, often with vulnerable testators being taken advantage of. About 30% of challenges involve undue influence allegations. There must be clear evidence of coercion rather than mere persuasion, resulting in the testator's free will being overborne by the influence. It is very difficult to provide evidence of undue influence, as this often occurs ‘behind closed doors’ and is not often witnessed by independent witnesses. The Court takes all the circumstances into account, including the vulnerability of the testator and the nature of the relationship with the person accused of unduly influencing them.
Fraudulent or forged will - alleged in approximately 5% of contested will cases. Evidence is needed by experts including document examination, analysis of signatures, paper and ink dating, handwriting comparison and document forensics.
Beneficiary excluded from will or not left as much as expected or as much as other relatives is not, by itself, grounds to challenge a will's validity - children have no automatic right to inherit. However, if you were financially dependent on the deceased, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for "reasonable financial provision." This requires showing financial dependency and financial need. Success depends on factors like your financial circumstances, the other beneficiaries' needs, the size of the estate and previous conduct of the testator and the excluded beneficiary. The claim must be brought within 6 months of the grant of probate.
Strong documentary and independent witness evidence is crucial to successfully challenging the validity of a will. Seeking expert legal advice early can help gather and present the right evidence for a successful claim. Typically, for different types of claims, evidence is needed as follows :-
Lack of testamentary capacity - medical records (GP and specialist reports) showing cognitive decline (e.g., a diagnosis and history of mental illness), witness statements from family, carers, or solicitors present during the will drafting process and expert psychiatric reports obtained post death to retrospectively assess the testator’s mental state at the time of making and signing the will. If someone is diagnosed with dementia, this does not necessarily mean they lack capacity to make a will.
Undue influence - witness evidence from those who observed unusual pressure or control over the deceased, financial records showing sudden or unexplained transfers, gifts, or changes benefiting one party and/or emails, letters, or recordings indicating coercion or manipulation.
Lack of proper execution - the will itself is needed to check for missing signatures, improper witnessing, or procedural errors and/or statements from witnesses who were present during the signing and/or solicitor’s file (if drafted professionally) confirming or disproving correct execution.
Fraud or forgery – the will itself is needed along with handwriting analysis to compare the will’s signature to known genuine samples of the testator (driving licence, bank cards, passport, letters etc), expert forensic reports on ink, paper, and document alterations, witness evidence from individuals who suspect the will was not signed by the testator.
Promises not reflected in the will (promissory or proprietary estoppel claims) - emails, letters, text messages or recordings where the deceased made financial promises, witness statements from friends or family who heard the deceased make commitments and evidence by the claimant that they relied on these promises to their detriment.
Before formal legal proceedings, several preliminary actions are necessary :-
If you do not have the will and no probate has been granted yet, register a standing search at the Probate Registry where you will be sent a copy of the probate (and will) if granted within the next six months – cost £3.00. Can be renewed every 6 months.
If you do not know if probate has been granted, register a general search at the Probate Registry for a copy of the will and probate – cost £16.00
Review grounds for challenge
Potentially enter a caveat (see below)
Assess evidence supporting possible grounds
Collect relevant documents and witness details
Consider limitation periods
Assess costs versus potential benefit.
A caveat blocks the grant of probate being issued and buys a 6 month time period (which may be renewed every 6 months) for investigation.
However, once a caveat is lodged, any person with sufficient interest can challenge a caveat by serving a 'warning'. This includes executors, beneficiaries, or potential beneficiaries under an earlier will. The warning requires the person who has lodged the caveat (‘caveator’) to either withdraw the caveat or enter an 'appearance' within 14 days to justify why they have lodged the caveat. If no appearance is entered, the caveat automatically lapses. If an appearance is entered, the caveat will become permanent and if the matter cannot be settled, it proceeds to litigation and the caveator must prove their grounds for challenging the will. The warning/appearance process prevents caveats being used simply to delay probate without genuine grounds. The caveator risks paying all parties' legal costs if they can't justify the caveat. It can only be used when the validity of a will is being challenged or if you are trying to stop (unreliable) applications by untrustworthy personal representatives. It is an abuse of process to lodge one in any other type of probate claim.
Challenging a will in the UK is high-risk because unsuccessful challengers often pay both sides' legal costs, which can be substantial. This means that estate assets risk being depleted in part or in total by litigation costs and family relationships are often permanently damaged.
Verified statistics for will validity court actions (remember that some claims are settled or withdrawn before formal legal proceedings are started) from Property and Business Courts HMCTS data (latest published Q4 2023) show :-
Contested probate claims issued: 829 in 2023
Pre-trial settlement rate: 52%
Full trial rate: 11%
It is apparent from the above that nearly 90% of court claims do not reach trial which demonstrates the importance of a strategic, flexible approach supported by skilled and experienced legal representation and negotiation.
The 40% withdrawal rate (see above) of court cases largely reflects cases abandoned after legal costs mount or evidence proves weak. Success rates are significantly higher when negotiations are handled by experienced and specialist lawyers who understand both the legal framework and emotional dynamics of inheritance disputes. Source: https://www.gov.uk/government/statistics/civil-justice-statistics-quarterly-july-to-september-2023
Negotiation skills often achieve better outcomes than litigation, preserving both estate value and family relationships. Early assessment of merits and evidence, cost versus benefit analysis, knowledge of when to push for mediation versus litigation are key aspects of our experience and approach.
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