Discovering that a loved ones will does not reflect what you expected can be upsetting and confusing. You may have been left out unexpectedly, received much less than you anticipated, or simply feel that something about the circumstances in which the will was made doesn’t seem right.
In some cases, there may be legitimate reasons to challenge the validity of a will or bring a claim against an estate. However, these disputes can become more difficult, costly and stressful if action is not taken promptly.
Understanding the grounds for contesting a will, the evidence required and the practical steps to take early on can help establish whether you have a potential claim and protect your position.
Can a Will Be Contested?
Yes. In England and Wales, a will can be challenged in several different ways.
Broadly speaking, disputes tend to fall into two categories:
- Challenges to the validity of the will itself
- Claims against the estate, even where the will is valid
The legal route available will depend on the specific circumstances of the case. Simply being unhappy with what someone has decided to put in their will does not necessarily provide grounds for a challenge, but there are situations where further investigation may be appropriate.
Challenging the Validity of a Will
Lack of Testamentary Capacity
A person making a will must have the mental capacity to understand:
- That they are making a will
- The effect of the will
- The extent of their assets
- The claims of those who might expect to benefit
The leading authority remains Banks v Goodfellow (1870), which established the legal test for testamentary capacity. In practical terms, the person making the will needs to understand what they are doing, what they own and who might reasonably expect to benefit from their estate.
Capacity disputes often arise where the deceased was living with:
- Dementia
- Alzheimer’s disease
- Serious mental illness
- Cognitive impairment following illness or injury
Having one of these conditions does not automatically mean someone lacked the capacity to make a will. The important question is whether they had the necessary capacity at the time the will was made.
Evidence may include medical records, GP notes, hospital records and witness evidence from those who knew the deceased.
Lack of Knowledge and Approval
Even where a person had capacity, questions may arise over whether they truly understood and approved the contents of the will.
For example, concerns may emerge where:
- A will was prepared shortly before death
- Significant changes were made unexpectedly
- The deceased was seriously ill
- The will was read to the deceased inadequately or not at all
You might become concerned if, for example, a longstanding will was suddenly replaced with one leaving most of the estate to a relatively new friend or carer, particularly if the deceased was seriously ill or dependent on that person at the time.
The court will look closely at the circumstances surrounding the preparation and signing of the document.
Undue Influence
Undue influence occurs where someone pressures or coerces the deceased into making a will they would not otherwise have made.
These cases can be difficult to prove because there is rarely direct evidence of coercion. Courts require evidence of actual pressure rather than mere persuasion or influence.
Warning signs can include:
- Isolation from family members
- Dependence on a particular individual
- Sudden changes in testamentary wishes
- Unexplained exclusion of close relatives
It may be that family members noticed changes before the person’s death, perhaps they became increasingly isolated, one individual began controlling who they saw, or they suddenly became reluctant to discuss matters they had previously spoken about openly.
None of these things automatically proves undue influence, but they may form part of the wider picture. Evidence commonly comes from witness statements, correspondence and records showing the relationship between the parties.
Fraud or Forgery
A will may be invalid if it was forged or signed fraudulently.
Examples include:
- A forged signature
- Alterations made after execution
- False information used to procure a will
Expert handwriting evidence and forensic examination may be required in these cases.
Failure to Comply with Legal Formalities
Under the Wills Act 1837, a valid will generally must:
- Be in writing
- Be signed by the person making the will, or by someone else at their direction
- Be witnessed by two independent witnesses present at the same time
Failure to comply with these requirements can render a will invalid. There can also be complications where a beneficiary, or their spouse or civil partner, witnesses a will. This does not necessarily invalidate the entire will, but it can affect that beneficiary’s entitlement.
Claims Against an Estate
Sometimes a will is valid, but a person may still have grounds to seek financial provision from the estate.
Inheritance Act Claims
Under the Inheritance (Provision for Family and Dependants) Act 1975, certain individuals can apply to the court if they believe reasonable financial provision has not been made for them.
Potential applicants include:
- Spouses and civil partners
- Former spouses in certain circumstances
- Children
- Individuals treated as children of the family
- Dependants maintained by the deceased
- Certain cohabiting partners
Being disappointed by the contents of a will is not, by itself, enough to bring a successful claim. A parent is not generally required to divide their estate equally between their children, for example.
However, the position may be different where someone was financially dependent on the deceased or otherwise falls within one of the categories protected by the Inheritance Act.
A common example is where an adult child is left nothing from an estate despite a history of financial dependence, or where a cohabiting partner receives inadequate provision.
Importantly, these claims are usually subject to a strict six-month limitation period from the date probate is granted so it is important to seek legal advice quickly.
What Evidence Is Needed?
You may strongly believe that something was wrong with a loved one’s will, but suspicion alone is unlikely to be enough. That is why piecing together what happened in the weeks, months or even years before the will was made can be so important. Useful evidence may include:
- Medical records
- GP and hospital notes
- Previous wills
- Solicitor file notes
- Witness statements
- Emails, letters and text messages
- Financial records
- Care home records
For example, if a parent changed their will shortly before death while suffering from advanced dementia, medical records and solicitor attendance notes may be crucial in determining whether capacity existed.
Previous wills can also help establish whether there was a sudden or unexplained departure from someone’s longstanding wishes.
Obtaining this evidence early is often essential, as records can become harder to access and memories can fade over time.
Why Acting Quickly Matters
If something about a will doesn’t feel right, you do not need to have all the evidence before speaking to a solicitor. In fact, waiting until you can “prove” your concerns can sometimes make matters more difficult.
Many people delay seeking advice because they hope matters can be resolved informally. While family discussions can be helpful, delay can create significant risks.
Early legal advice can help:
- Preserve evidence before it is lost
- Obtain relevant records promptly
- Identify applicable time limits
- Prevent distribution of estate assets where appropriate
- Assess the merits of a claim before costs escalate
Once estate funds have been distributed to beneficiaries, practical recovery can become considerably more complicated.
In some cases, solicitors can notify executors of a potential claim and request that distribution is paused while investigations take place.
Practical First Steps to Take
If you are concerned about a will or the administration of an estate:
- Obtain a copy of the will.
- Gather relevant documents and correspondence.
- Make a written note of key events and conversations.
- Identify potential witnesses.
- Seek specialist legal advice as soon as possible.
- Avoid disposing of documents or electronic communications that may be relevant.
Taking these steps early can help preserve important information and place you in a far stronger position should a dispute arise.
How Ison Harrison Can Help
Will disputes are often emotionally charged and can place significant strain on families. It can be particularly difficult when you are dealing with questions about a loved one’s final wishes at the same time as grieving their death.
If a loved one’s will has taken you by surprise, or something about the circumstances in which it was made doesn’t feel right, you may be unsure whether you have genuine grounds to challenge it. You don’t need to work that out on your own before seeking advice.
The experienced Wills and Probate team at Ison Harrison can assess the circumstances of your case, explain your options in clear terms and advise you on the practical steps you should take next. For a confidential discussion and no-obligation consultation, contact Ison Harrison today.
Call 0113 284 5000 or email mail@isonharrison.co.uk.
