Contesting a Will in England and Wales

Disputes can arise over how a person’s Will has been made, whether it reflects the deceased’s true wishes, or whether dependants have been left without adequate support. It is essential that if you have concerns surrounding the deceased’s Will, that legal advice is sought at the outset to ensure you best protect any interests you may have.

Common grounds for contesting a Will

There are only certain legal grounds to contest the validity of a Will, these include:

Lack of testamentary capacity

A Will can only be valid if the person making it understood what making a Will is, the extent of their property, and the claims of those who might expect to benefit/ who they should expect to provide for. Capacity can be affected by medical conditions such as dementia, illness or by the effects of medication. Diagnosis of those conditions does not give rise to an automatic right to claim a lack of capacity; the level of the condition/ impairment is important. Often, medical and contemporaneous evidence is often crucial in resolving disputes of this nature.

Lack of knowledge and approval

In circumstances where the person making the Will had the requisite capacity, the Will must reflect the deceased’s true wishes. Contesting a Will for lack of knowledge and approval involves proving the person who made the Will did not understand or agree with its contents. Issues may arise if the deceased did not read or have the Will properly explained before signing the Will, or if there were suspicious circumstances, particularly where a beneficiary was involved in its preparation and/or execution in their favour, where the deceased did not have knowledge.

Undue influence

A Will can also be found to be invalid if someone coerced or pressured the deceased into making a Will or making certain dispositions under that Will that they would not otherwise have made. This is a serious allegation that requires clear evidence of undue influence, coercion or domination that overpowered the deceased’s free Will.

Lack of due execution

When executing a Will, there are formal signing and witnessing requirements as set out in Section 9 of the Wills Act 1837. Errors in execution, witness issues or alterations made after signing can render a Will invalid.

Fraud or forgery

If a signature or the Will itself is forged, or if the testator was misled by fraudulent statements, the Will can be set aside. Expert handwriting and other forensic evidence may be required.

Frequently Asked Questions

What does it cost to contest a Will?

Costs vary with complexity, evidence and the approach of the parties. We provide clear budgets and discuss funding and insurance options at the outset.

Do I have to go to court?

Many disputes settle through negotiation or mediation. Court proceedings may still be needed to protect limitation or to obtain directions.

Can I see the Will and the Will file?

Once probate issues arise, it is often possible to obtain a copy of the Will. The file from the solicitors who prepared the Will including their attendance notes of the meetings when the Will was made may be disclosable, particularly following a Larke v Nugus request.

Does challenging the Will reduce what I receive?

There is a risk of adverse costs if unsuccessful. You should seek advice on prospects and settlement options before issuing proceedings.

How can we help?

We assess the merits at an early stage, secure urgent protective measures such as entering a Caveat which stops a Grant of Probate from being obtained, obtain and analyse key documents and evidence, and pursue proportionate resolutions, including mediation. Where proceedings are necessary, we act decisively to protect your position while managing costs and risk.

For legal advice on contesting a Will or an inheritance dispute, please contact our contentious probate solicitors on 0161 785 3500 or email will-disputes@pearsonlegal.co.uk.

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.