Articles | Guide to challenging wills

Can you challenge a will?

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Katharine Riley

Katharine Riley

If you have been left out of a will from which you had expected to benefit, or stand to receive significantly less than you had anticipated, you may be considering whether you can challenge the will. If a will is successfully challenged and overturned, the position goes back to the last prior valid will or, if there is none, to the position under the Intestacy Rules.

You may be able to challenge a Will successfully if certain legal requirements are met, including whether you have the legal standing to make a challenge. This may involve issuing a probate claim or dealing with the matter pre-litigation following receipt of specialist legal advice and/or engaging in Alternative Dispute Resolution, for example mediation.

The grounds on which a Will may be declared invalid include:

  • Invalid execution: has the Will been executed properly in accordance with the requirements s.9 of the Wills Act 1837 (s.17 Administration of Justice Act 1982)? A Will must be in writing, signed by the testator or in his presence and at his direction and two or more witnesses must be present at the same time as the testator and each other.
  • Fraud and forgery: A will may be invalidated where the testator’s signature has been forged or the Will has been procured by fraud. Forgery is often a question of expert handwriting evidence. This is a complex area and if you have concerns regarding forgery or fraud you will need to obtain specialist advice as to how to seek to set the Will aside.
  • Lack of testamentary capacity: With an ageing population and a consequent increase in cases of dementia, issues frequently arise as to whether a testator had the required mental capacity to make a Will. The relevant legal test is set out in caselaw (the case of Banks v Goodfellow). Similarly, the issue may arise in the case of people suffering from mental illness or traumatic injury (e.g. brain damage). If a court considers, having reviewed all relevant medical and factual evidence surrounding the making of the will and the testator’s capacity, that the testator did not meet the relevant legal threshold a will may be overturned.
  • Want of Knowledge and Approval: A testator must have knowledge and approval of the contents of a will. In addition if a person who benefits significantly has been involved in the execution of a will, a suspicion “arises in the mind of the Court” about their role. If this cannot be rebutted the will may be declared invalid.
  • Undue influence: If a person has made a will because they have been forced or co-erced into making it by another (who usually stands to benefit as a result) the will may be set aside on grounds of undue influence. Similarly, if the will has been produced by “fraudulent calumny” on the part of a beneficiary to achieve the exclusion of others, it may be set aside.

All these grounds of challenge are complex and require detailed investigation and specialist advice. If we can assist you with a possible challenge to a will, or you are facing a challenge to a will from another party please contact Katharine Riley at katharine.riley@fsp-law.com or on 0118 951 6245.