Challenging A Will

Challenging a Will can be difficult, but it’s not impossible. While English law respects an individual’s rights to distribute their assets in any way they choose, the courts will step in to change the terms of a Will in some limited circumstances.

If you believe you have a reason for challenging a Will, our expert Wills and Probate solicitors are here to help. We have assisted countless clients in challenging the terms of a Will and receiving the inheritance to which they were entitled.

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Reasons For Challenging A Will

There are several reasons for challenging a Will. They include the following:

• Lack Of Testamentary Capacity.

Lack of testamentary capacity can be a reason for challenging a Will. It relates to situations in which the person who made the Will – known as the ‘testator’ – could not make a valid Will due to a mental impairment that meant they did not understand what they were doing and how that might impact the distribution of their Estate at the time they made the Will. Even if they later regain capacity, their Will may be invalid if they lacked capacity at the relevant time.

Whether a testator had the requisite mental capacity to make a valid Will is assessed according to the following legal test:

Did they understand the nature of making a Will and its effects?
Did they understand the nature and extent of their Estate?
Did they understand the claims they should give effect to? In other words, did they appreciate who their potential beneficiaries might be?
Were they suffering from any disorder that interferes with their sense of what is right and causes them to make decisions about their Will that they would not have made had they been of sound mind?

Some red flags that might indicate a testator lacked testamentary capacity include the following:

You know the testator had a condition at the time of making the Will that likely interfered with their ability to fully understand what they were doing.
The Will is at odds with promises made by the testator during their lifetime.
The beneficiaries are not people or causes you know were important to the testator.

If you succeed in challenging a Will on the basis of lack of testamentary capacity, the testator’s Estate will be distributed in accordance with the terms of any earlier Will or, if no earlier Will exists, the Rules of Intestacy.

• Undue Influence

Challenging a Will for undue influence involves proving that the testator was coerced into distributing their Estate, or parts of it, in the way they did. Cases of this nature often involve testators who were vulnerable or dependent on the person accused of asserting undue influence.

Establishing undue influence can be a challenge since it often takes place behind closed doors. Examples of the types of evidence that can assist in proving that the Will does not reflect the testator’s true wishes but was made under duress include the following:

The testator was mentally frail when they made their Will, meaning they were more susceptible to coercion.
The testator was isolated from their friends and family.
The testator was dependent on the person suspected of undue influence when they made their Will.
The Will does not reflect the wishes the testator had expressed during their lifetime.
The Will reflects a sudden change to the benefit of the person suspected of undue influence.

If you succeed in challenging a Will on the grounds of undue influence, an earlier Will made by the testator may be reinstated, or the Estate may be distributed according to the Rules of Intestacy.

• Improper Execution.

A Will must meet a series of strict legal criteria to be valid. Those criteria are as follows:

The testator was 18 or over when they made the Will.
The testator made the Will voluntarily.
The testator was of sound mind when they made the Will.
The testator made the Will voluntarily.
The Will was in writing.
The testator signed the Will in the presence of two witnesses.
The witnesses signed the Will in the testator’s presence.

If you can prove that the Will does not meet all the above criteria, you can challenge it on the grounds of improper execution. If you succeed, the court will reinstate an earlier Will, or the Intestacy Rules will dictate who inherits.

• Lack Of Knowledge And Approval.

For a Will to be valid, the testator must have understood and approved of its terms. If you have reason to suspect they didn’t, you may have grounds for challenging the Will on the grounds of lack of knowledge and approval.

A testator will generally be presumed to have knowledge and approval provided they executed it properly and were of sound mind. Some discrete exceptions apply to this general position, such as if the testator was deaf and dumb or blind.

To challenge a Will for lack of knowledge and approval, you need to produce evidence that casts doubt on the testator’s understanding of the terms of their Will. If you can do this, the burden shifts to those defending the Will’s validity to prove that the testator did understand and approve it.

If you succeed in challenging a Will for lack of knowledge and approval, the testator’s earlier Will will be reinstated if they made one, or the Intestacy Rules will dictate who inherits.

• Fraud Or Forgery

Challenging a Will for fraud or forgery requires significant evidence due to the seriousness of the offences and potential penalties. Forgery may relate to the entire Will or the testator’s signature, whereas fraud may involve destroying or hiding a Will after the testator’s death. There are often different grounds on which a Will can be challenged that are easier to prove than fraud or forgery. Our Wills and Probate solicitors will consider the circumstances of your case and advise accordingly.