A ‘Last Will and Testament’ is a fundamental legal document, setting out an individual’s (the ‘testator’s’) final wishes for the distribution of their property and assets upon death. In England and Wales, the principle of ‘testamentary freedom’ is paramount, meaning a testator can generally leave their assets to whomever they choose—be it family, friends, or charities.
However, this freedom is not absolute. The law provides crucial safeguards to ensure a will is valid and that certain individuals are not left without reasonable financial provision. If you have been omitted from a will, or believe it is fundamentally unfair or improper, you may be asking: can you contest a will? The answer is yes, and our solicitors specialise in the process of challenging or contesting a will.
This guide outlines the valid legal grounds and processes involved.
The two main avenues for a challenge
It is essential to understand that there are two primary ways to challenge a will, which are legally distinct:
- Challenging the Validity of the Will: This type of claim argues that the will itself is legally invalid and should be disregarded entirely. If successful, the estate would be distributed according to a previous valid will or, if there is no other will, according to the Rules of Intestacy. Understanding what would happen if you die without a will is key in these situations.
- Making a Claim for Reasonable Financial Provision: This type of claim accepts the will is valid but argues that it fails to make adequate financial provision for a specific individual. This is correctly known as a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
Grounds for challenging the validity of a will
To argue that a will is invalid, you must prove one or more of the following grounds. Merely feeling the distribution is unfair is not enough, and it is often these grounds that lead to a disputed probate case over a suspicious will.
Lack of valid execution
For a will to be valid, it must comply with the strict formalities set out in Section 9 of the Wills Act 1837. This requires that the will is:
- In writing.
- Signed by the testator, or by some other person in their presence and by their direction.
- The testator intended by their signature to give effect to the will.
- The signature is made or acknowledged in the presence of two or more witnesses present at the same time.
- Each witness then signs the will, or acknowledges their signature, in the presence of the testator.A failure to meet any of these requirements can render the will void.
Lack of testamentary capacity
The testator must have had the necessary mental capacity when the will was executed. The legal test for this was established in the case of Banks v Goodfellow (1870). A will can be deemed invalid if it can be proven that the testator lacked the required understanding, and we have specific expertise in handling invalid wills involving mental capacity. The testator must have been able to:
- Understand the nature of making a will and its effects.
- Understand the extent of the property of which they are disposing.
- Be able to comprehend and appreciate the claims to which they ought to give effect.
- Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties.
Undue influence or coercion
This ground alleges that the testator was coerced or pressured into making a will that did not reflect their true wishes. These situations often involve invalid wills involving undue influence by others. Undue influence can be very difficult to prove as it often happens without witnesses, and can be a form of protecting the vulnerable elderly against financial abuse.
Lack of knowledge and approval
Even if the testator had capacity, it must also be shown that they knew and approved of the contents of the will. A challenge may arise if the testator was, for example, frail, visually impaired, or did not speak English, and there is a suspicion they did not fully understand the document they were signing.
Fraud or forgery
A will can be challenged on the grounds of fraud or forgery. This can happen if the testator was deliberately misled by false information, or if the will or the signature is not genuine. We have significant experience in dealing with cases involving fraudulent wills.
Claims for reasonable financial provision (The Inheritance Act 1975)
This is a completely separate type of claim from those listed above and is often misunderstood. It is not an Inheritance Tax claim, which is a tax matter dealt with by HMRC.
A claim under this Act argues that the will (or the Rules of Intestacy) fails to make “reasonable financial provision” for the claimant. These are known specifically as Inheritance Act claims, and their outcome is highly dependent on the specific circumstances, as highlighted in our Inheritance Act case study.
Who is eligible to make a claim?
Only a specific class of people is legally entitled to bring a claim under this Act. They are:
- The spouse or civil partner of the deceased.
- A former spouse or civil partner of the deceased (who has not remarried or entered a new civil partnership).
- A person who, for the two years immediately preceding the death, was cohabiting with the deceased as if they were a spouse or civil partner.
- A child of the deceased (of any age).
- A person who was treated by the deceased as a ‘child of the family’ (e.g., a step-child).
- Any other person who, immediately before the death of the deceased, was being maintained, either wholly or partly, by the deceased.
The Crucial Time Limit
There is a very strict time limit for making an Inheritance Act claim. Legal proceedings must be issued within six months from the date of the Grant of Probate. It is imperative to seek legal advice well before this deadline expires.
What if the will is valid, but the executors are at fault?
Sometimes the issue is not with the will itself, but with the actions of the people appointed to administer the estate. If you believe the executors are not distributing the estate correctly, are acting improperly, or are causing undue delays, you can take legal action. These are known as executor disputes, and we can advise on problems with executors or trustees.
The practical process of contesting a will
- Initial Advice and Evidence Gathering: The first step is to seek specialist legal advice to assess the merits of your potential claim. Your solicitor will help you gather evidence, such as medical records or witness statements.
- Entering a Caveat: If you are challenging the validity of a will, your solicitor can enter a ‘caveat’ at the Probate Registry. This is a notice that temporarily prevents a Grant of Probate from being issued, giving you time to conduct investigations.
- Negotiation and Mediation: The vast majority of will disputes are resolved without a full court trial. Solicitors will engage in correspondence and negotiation, and it is common to use mediation to reach a settlement.
- Court Proceedings: If a settlement cannot be reached, it may be necessary to issue court proceedings to have a judge decide the matter.
Conclusion: seek specialist advice promptly
So, can you contest a will? Yes, you can—but only if you have valid legal grounds and, in the case of an Inheritance Act claim, you fall within an eligible category. The law in this area is complex, and the processes are governed by strict procedures and time limits.
If you believe you have been unfairly left out of a will or have concerns about its validity, it is vital to seek advice from a solicitor specialising in contentious probate as soon as possible.