Challenge a Will

A will can be contested, but feeling disappointed or believing that the outcome is unfair will not usually be enough on its own. In England and Wales, people generally have considerable freedom to decide who should inherit their estate.

To challenge a will successfully, you normally need a specific legal reason for doing so.

One possibility is that the will itself is not legally valid. This may be the case if there are concerns about how it was prepared or signed, whether the person making it understood what they were doing, or whether somebody put them under improper pressure.

A different type of claim may be available under the Inheritance (Provision for Family and Dependants) Act 1975. This allows certain people to ask the court for reasonable financial provision from an estate if the will, or the intestacy rules where there is no valid will, does not make suitable provision for them. Whether you can bring this type of claim will depend on your relationship with the person who died and your individual circumstances.

Disputes can also arise over what a will means, who owns particular assets or how an executor is dealing with the estate.

Understanding the type of dispute you have at an early stage is important. It can help prevent unnecessary time and money being spent pursuing the wrong legal route.

There may be grounds to contest a will if there are genuine concerns about whether it reflects the legally valid wishes of the person who made it.

For example, concerns may arise if the person was experiencing dementia, serious illness or cognitive decline when the will was made. A diagnosis or occasional confusion does not automatically make a will invalid. The key question is whether they had the mental capacity needed to understand what they were doing when they gave instructions for the will and signed it.

A will may also be challenged because of undue influence. This is more than somebody offering advice, being involved in discussions or having an opportunity to influence the person making the will. It involves pressure that overpowered their own wishes and caused them to make decisions they would not otherwise have made. These claims can be difficult to prove, so the wider circumstances and available evidence need to be considered carefully.

Other possible reasons for challenging a will include:

• the will was not signed and witnessed correctly
• the person making the will did not know or approve its contents
• there are concerns that the will was forged or created fraudulently
• a later valid will exists
• the wording of the will is unclear or may not reflect the person’s instructions

Even where the will itself is valid, some people may be entitled to seek reasonable financial provision from the estate. This may include a spouse or civil partner, a former spouse or civil partner who has not remarried, a child, someone treated as a child of the family, certain cohabiting partners or somebody who was financially maintained by the person who died.

Whether you can bring this type of claim, and what financial provision may be considered reasonable, will depend on your circumstances.

An unexpected change to a will, being left out altogether or receiving a much smaller inheritance than expected can sometimes be relevant, particularly if it appears inconsistent with earlier wills, promises or family relationships. However, this does not automatically mean that the will is invalid. We can look at what happened and advise whether further investigation is worthwhile.

Your first conversation with us is an opportunity to explain what has happened and why you are concerned. You do not need to understand the legal terminology or have every relevant document ready before contacting us.

We may ask about your relationship with the person who died, what you understood their wishes to be, when the will was made and how you became aware of its contents.

If there are concerns about mental capacity or undue influence, we may also ask about the person’s health, living arrangements, relationships and whether they depended on other people around the time the will was made.

We will establish whether probate has already been granted, whether assets are being distributed and whether any important deadlines may apply.

In some cases, it may be possible to enter a caveat. A caveat temporarily prevents a probate grant from being issued while concerns about a will are investigated. It initially lasts for six months and must be entered before the grant is made. However, a caveat is not suitable for every inheritance dispute and can lead to further legal proceedings and costs, so we will advise you on whether it is the right step in your circumstances.

Once we have considered the information available, we will explain which legal route may apply, what evidence could be important and what practical options you have.

We will also be honest with you if the evidence is not currently strong enough to support a claim, or if the likely cost and disruption could outweigh what you may realistically achieve.

Getting legal advice does not mean you have to start formal proceedings. It may simply help you obtain more information, protect your position while enquiries are made or decide with greater confidence that you do not want to take the matter further.

Will disputes often involve both legal and personal issues. Our role is to identify the real point of disagreement, assess the evidence and help you decide on a sensible way forward.

Depending on the circumstances, we can obtain and review the current will, earlier wills and information about how the will was prepared. We can also consider correspondence, financial records, medical evidence and information from people who knew the person who died.

Where appropriate, we can make enquiries with the person who prepared the will, the executor, beneficiaries or their solicitors.

If probate has not yet been granted, or there is a risk that estate assets could be distributed before your concerns have been properly investigated, we can advise you on steps that may help protect your position.

If your concern is that you have not been left reasonable financial provision, we can advise whether you may be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. We will consider your relationship with the person who died, your financial circumstances and the other factors that may affect your claim.

These claims can be made before a Grant of Representation is issued, but the usual six-month time limit runs from the date of the grant.

We can also help if you are concerned about the way an executor is handling the estate. For example, an executor may be withholding information, causing unexplained delays, mishandling assets or acting in a way that conflicts with their responsibilities.

Depending on what has happened, we may be able to ask the executor to provide a full account of how the estate is being handled, ask the court to decide how the administration should proceed or, in more serious cases, consider whether action should be taken concerning the executor’s position.

Many will disputes can be addressed through early correspondence, negotiation or mediation. These approaches can give everyone involved an opportunity to reach a practical agreement without asking a court to decide the case.

If court proceedings become necessary, we will guide you through the process and make sure you understand your options, the risks and the likely costs at each stage.