Our specialist Will, Trust and Estate Disputes team have extensive experience in dealing with the process of contesting a will and are on hand to support you to get the right outcome for you.
The most common grounds on which the validity of a will can be challenged are that the testator (the person making the will):
- Lacked the requisite mental capacity to make a will
- Did not know or approve of contents of the will
- Was forced, coerced or unduly influenced to make the will
- Did not comply with the legal formalities when executing the will
- Had revoked or destroyed the will
In addition to the above grounds, wills can also be challenged on grounds of fraud and forgery.
Whether you are seeking to uphold the validity of a will which is being challenged, or attempting to bring a challenge yourself, our specialist lawyers can provide you the advice that you need and guide you through the process.
Our team are members of the Association of Contentious Trust and Probate Specialists (ACTAPS) and deal exclusively with disputes regarding trusts and estates, including contesting a will. We also have a number of funding methods available to us, including deferred payment and no win no fee.
Grounds for challenging a will
Lack of due execution
The formalities for making a valid will are set out in s9 of the Wills Act 1837.
They are:
- The will should be in writing and signed by the testator (the person making the will).
- The testator’s signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time.
- Each witness attests and signs the will or acknowledges his signature in the presence of the testator
Although this is often thought to be the case, there is no actual requirement for a will to be dated. However, if a will has not been dated, this can lead to uncertainty regarding the timing of execution and if it is the last will or not. It is therefore strongly recommended.
If any of the above requirements are not met, the will may be invalid.
If you are concerned that a will may be invalid for lack of due execution, you should seek advice from one of our specialist solicitors as soon as possible.
Lack of testamentary capacity
It is possible to challenge a will on the basis that the person who made it (the testator) did not have mental capacity at the time. With the ageing population and the increase in diagnosis of illnesses such as Alzheimer’s, we see this ground being argued regularly.
The legal test for assessing whether someone has capacity to make a will is set out in the case of Banks v Goodfellow.
The Banks test sets out that a person shall:
- Understand the nature of the act of making a will and its effects.
- Understand the nature of the extent of the property of which he is disposing.
- Be able to appreciate the claims to which he ought to give effect (who are his potential beneficiaries).
- Not be suffering from a disorder of the mind which poisons his affections, or pervert his sense of right…and bring about a disposal which if his mind had been sound would not have been made.
In order to succeed with such a claim, especially where a solicitor has been involved in the preparation of the will, the court will expect “the clearest of evidence” (Hawes v Burgess). This will almost always involve detailed consideration of medical records, as well as the file of the solicitor who prepared the will.
A recent successful claim was the case of Oliver v Oliver [2024] EWHC 2289 (Ch). The Court found that the testator had lacked testamentary capacity due to a disorder of the mind (fourth strand of the Banks test). He had been suffering from ischaemic heart disease, leading to a lack of oxygen to the brain. The Deceased’s post mortem had revealed moderate Alzheimer’s disease pathology.
Importantly, it was not the mere presence of a mental disorder which was decisive. Indeed, many people with dementia type illnesses will retain the capacity to make a will. The testator in Oliver had also been found to be suffering from insane delusions about the disinherited claimants, which were not based on any solid evidence. The judge found that he would not have made his final will were it not for his mental disorder and insane delusions about the claimant.
As with other challenges to validity, expert legal advice should be sought at an early stage. Our specialist solicitors will be able to guide you through any claim involving this kind of issue. They have a wealth of experience of such claims, including taking them to trial.
Undue influence
Undue influence, as a ground for challenging a will, is something which is often argued by claimants, but is rarely successful due to the difficulty in obtaining strong evidence. The ground requires testator to have been effectively coerced into making a will that they did not wish to make. In Hall v Hall (1865-69) the court described this as “pressure…so exerted as to overpower the volition of the testator”.
The difficulty in these cases often arises due to the burden of proof of proving undue influence, which rests with the person bringing the allegation. This can be contrasted with challenges of lifetime gifts on the basis of undue influence, where there is potential presumption of undue influence in certain situations (RBS v Etridge). The difference between these two tests was recently emphasised in the appeal case of Rea v Rea, in which a first instance finding of undue influence was overturned.
Disputing a will based on undue influence
The person challenging the will must present evidence that the undue influence over the testator was actually exercised and that the will was obtained as a result. As set out by the court in Carpeto v Good [2002] WTLR 801 this is often considered to be “inherently improbable” and that the court had to “bear that in mind” when considering the claim that the will was procured by undue influence.
This is not to say that undue influence claims are never successful, nor are they not worth considering. Many cases which involve strong evidence will never get to trial. Understandably, the person who has committed the undue influence will have an interest in keeping those cases away from the courts (and court reporters!).
There are also of course examples of cases where an undue influence allegation is successful, for example the case of Schomberg v Taylor [2013] EWHC 2269 (Ch).
In Schomberg, evidence was provided that the deceased has complained to many members of her family that she was being persistently harassed by another family member into changing her will. Reports also suggest that a particularly poor witness performance by the defendant had helped the judge form the view that the undue influence had indeed taken place.
If you are involved a matter involving suspicions of undue influence, the best course of action is to seek advice from one of our specialist solicitors, who can guide you through the process.
Want of knowledge and approval
Want of knowledge and approval arises in a situation where a testator has executed a will in circumstances where they did not actually know what was in the document that they were signing and were therefore unable to provide their approval. This means, in order for a will to be valid, the person making the will must know the contents of the will and approve them. This could be done by reading it or having it read to them.
The test for capacity involves asking a generic question, was the testator capable of understanding what was in their will? With knowledge and approval, the question is much more specific. Here, we are required to ask whether the person actually knew and approved of the contents of their will. Such cases will always involve an investigation of the circumstances surrounding execution.
The established test for knowledge and approval is set out in the 1838 case of Barry v Butlin. The case concerned a will made by an elderly testator under which a quarter of his estate was left to the lawyer who drafted the will for him. Other beneficiaries included his Butler. His only son was entirely disinherited.
The case established that, the onus of proving that a person knew and approved of their will was on the person seeking to admit that will to probate. In non-suspicious circumstances, knowledge and approval would be presumed where a person clearly had mental capacity and the will was duly executed.
However, where a will is prepared under circumstances that ought to “excite the suspicion of the court” the court held that the will should not be upheld unless that suspicion is removed. This requires the person seeking to propound the will to present further evidence that the testator did actually know and approve the contents of the will.
Ultimately, the will in Barry v Butlin was upheld, but the principles set out in that case largely survive to this day.
A more recent example of a successful claim of want of knowledge and approval is the appeal case of Hawes v Burgess [2013] EWCA Civ 74. In that case, the Court of Appeal upheld the lower court’s finding that a will was invalid for want of knowledge and approval.
The following factors were crucial in the court’s findings:
- One of the main beneficiaries (a daughter of the testator) had made all of the arrangements for her mother to make a new will
- The new will disinherited one of the children, despite the testator being on excellent terms with that child. There was no clear explanation for the decision.
- The daughter had remained present during the will preparation meeting, answering many of the questions on her mother’s behalf
- No draft will was provided to the testator prior to execution
These circumstances were said to be enough to excite the court’s suspicion and the appellant was unable to remove that suspicion with rebuttal evidence.
Each case will of course turn on its own facts. If you believe that want of knowledge and approval might apply to your case, we would encourage you to speak to one of our specialist Will, Trust and Estate dispute solicitors.
