Contesting a will can feel overwhelming, especially if you believe you’ve been treated unfairly or suspect the will is invalid. In England and Wales, the law sets out strict grounds and procedures for challenging a will. The process is often emotionally charged and can be financially demanding, so it’s important to understand your options, the risks, and the steps involved before you begin.

Legal Grounds for Contesting a Will

You cannot contest a will simply because you are unhappy with its contents. The law recognises only certain grounds for challenge:

Lack of Testamentary Capacity:
The person making the will (the testator) must have understood the nature and effect of the document at the time it was made. If they were suffering from dementia, severe mental illness, or were otherwise incapable, the will may be invalid. Medical records and witness statements are often key evidence.

Undue Influence:
If someone pressured or coerced the testator into making a will that does not reflect their true wishes, the will can be challenged. Proving undue influence is difficult; the court requires clear evidence of manipulation, not just suspicion or family disagreements.

Improper Execution:
A will must be signed by the testator in the presence of two independent witnesses, who must also sign. If these formalities are not followed, the will is invalid. This is a common pitfall, especially with homemade wills.

Fraud or Forgery:
If the will is forged or the testator was deceived about its contents, it can be set aside. Evidence might include handwriting analysis or proof that the testator was misled.

Lack of Knowledge and Approval:
Even if the will is properly signed, it can be challenged if the testator did not know or approve of its contents. This often arises where someone else prepared the will and the testator was frail or unable to read.

Financial Provision Claims

If you have not been left what you believe is reasonable financial provision, you may be able to claim under the Inheritance (Provision for Family and Dependants) Act 1975. This law allows certain people to apply for a share or a larger share of the estate if the will (or intestacy) fails to make reasonable provision for them. Eligible claimants include:

• Spouses and civil partners

• Former spouses or civil partners who have not remarried

• Cohabiting partners (living together for at least two years)

• Children (including adult children and those treated as children)

• Anyone financially maintained by the deceased

The court will consider factors such as your financial needs, the size of the estate, and the needs of other beneficiaries.

The Process: Steps and Time Limits

Assessing Your Claim:
Before taking action, gather as much information as possible about the will, the estate, and the circumstances in which the will was made. Consider whether you have evidence to support your claim.

Time Limits:
For financial provision claims, you must act within six months of the grant of probate. Other challenges (such as for undue influence or lack of capacity) do not have a strict statutory deadline, but delay can weaken your case and make it harder to obtain an injunction to stop the estate being distributed.

Mediation and Negotiation:
Courts expect parties to try to resolve disputes through mediation before proceeding to trial. Mediation can save time, money, and family relationships. If agreement is reached, it can be made legally binding.

Court Proceedings:
If mediation fails, the case may proceed to court. This can take one to three years, depending on complexity and the court’s timetable. The court will examine the evidence and decide whether the will is valid or whether reasonable provision should be made.

Costs, Risks, and Common Pitfalls

Costs:
Will disputes can be expensive, with legal costs sometimes running from £10,000 to over £100,000. If you lose, you may be ordered to pay the other side’s costs as well as your own.

Emotional Toll:
Contesting a will can strain or destroy family relationships. Consider whether the potential gain is worth the personal cost.

No Guarantee of Success:
Even strong cases can fail if evidence is lacking or the court is not persuaded. The burden of proof is on the person challenging the will.

Common Pitfalls:

• Missing the six-month deadline for financial provision claims

• Relying on hearsay or suspicion rather than concrete evidence

• Failing to consider the impact on other beneficiaries

• Not exploring mediation before going to court

Practical Tips

• Gather all relevant documents, including the will, medical records, and correspondence.

• Keep a clear record of your communications and attempts to resolve the dispute.

• Be realistic about your chances and the possible outcomes.

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Disclaimer: This blog post provides general information for educational purposes only. It is not legal advice. Outcomes can vary based on your personal circumstances.