Grounds For Contesting A Will

Whether you’re contesting a will or defending a will claim, our expert team of solicitors can help. The main grounds to contest a will are:

Lack of testamentary capacity (the mental capacity needed to make a valid will)
Lack of due execution (a failure to meet the necessary formalities i.e. for the will to be in writing, signed and witnessed correctly)
Lack of knowledge and approval of the will (i.e. not knowing the meaning or content of the will)
Undue influence or duress (pressure put on a person to make or change a will)
Fraud or forgery (i.e. faking a signature or making unauthorised changes to a will)
Rectification and construction (i.e. if a will is ambiguous, unclear or does not carry out a person’s intentions or wishes)

Take a look below for more details on how to contest a will.

Lack of testamentary capacity

For a person to make a valid will they must be of sound mind. The legal test is set down in the 1870 case of Banks v Goodfellow, which states that, for a will to be valid, a person, must:

understand that they are making a will and the effect of that will;
know the nature and value of their estate;
understand the consequences of including and excluding
certain people under their will; and,
not be suffering from any ‘disorder of mind’ which may influence their views.

For example, if the testator made gifts that they would not have made had they not been suffering from that disorder. Although the law has developed since the case of Banks v Goodfellow, the basic principles remain the same.

In a will dispute, any of the concerns mentioned would be the starting point for challenging a will on the grounds of a lack of testamentary capacity.

For more information watch our video explaining lack of testamentary capacity.

Lack of Proper Formalities

In a claim for lack of proper formalities, also known as ‘lack of due execution’, a will is invalid if it fails to meet one or more of the following requirements (as set out in s.9 Wills Act 1837):

The will must be in writing and signed by the testator or signed by someone else in their presence, who has been directed to do so by the testator.
It must appear that the testator intended by their signature to give effect to the will.
The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time.
Each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness.
The legal presumption is that a will has been validly executed unless there is evidence to the contrary such as doubts over any of the above factors.

There are also strict rules about who can and cannot witness a will.

For more information watch our video explaining lack of proper formalities.

Lack of knowledge and approval

A person must have knowledge of, and approve of, the content of their will. They must know that they are signing a will, and approve of its contents.

It is possible to contest a will on the basis of a lack of knowledge and approval even if the will appears to be validly executed and the testator had mental capacity. It must be shown that the testator was not aware of the content of the will or that there were suspicious circumstances.

For instance, where there is a substantial gift in the will to a person who helped prepare it.

For more information watch our video explaining lack of knowledge and approval.

Undue influence

To prove that a person was unduly influenced, coerced or under duress when making a will you must show ‘actual undue influence’.

Unlike some classes of gifts made during lifetime, the law does not automatically presume that, because one person in a position of trust has received assets from another person, it is because of undue influence.

The evidence needed to prove undue influence must be of a high standard, to the extent that there is no other reasonable theory to explain the terms of the will. However, recent case law seems to be marking a sea change with the court willing to accept arguments that people have been unduly influenced.

Our team have a proven track record in such cases of undue influence and represented the successful claimants in the reported case of Re Edwards [2007] EWHC 1119 (Ch).

If you believe that a person has made a will because of significant coercion by another person or you are facing such a claim, our will dispute solicitors can help. We have a proven track record in cases of this nature.

For more information watch our video explaining undue influence.

Fraudulent wills and forged wills

You are able to contest a will if you believe it was forged or fraud has taken place.

For example, if Alan prepares a will in Barbara’s name and forges Barbara’s signature so that her estate is left to him on her death, the will would be invalid because of the forgery.

Alternatively, if Barbara intends to benefit Alan in her will but Carol lies to her by stating that Alan has stolen money, and then Barbara reacts by removing Alan from her will, the will may be invalid as a result of Carol’s fraud.

Our team of solicitors has expertise in dealing with fraudulent wills. Whether you are looking to make a claim or defend against one, our legal specialists are able to advise you on any type of fraudulent or forged will case you may have.

For more information watch our video about fraudulent and forged wills.

Rectification and construction claims

A will may be rectified where it fails to carry out the testator’s intentions either because of a clerical error or because of a failure on the part of the person preparing the will to understand the testator’s instructions. When a will is negligently drafted this is often the first port of call before making a claim for professional negligence.

We can advise you on negligently drafted wills, claims for rectification of a will or claims regarding the construction of a will.

For more information watch our video on rectification and construction claims.

Key contact

Roman Kubiak TEP

Partner

Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

A natural and dynamic leader’, the ‘very impressive’ Roman Kubiak heads the firm’s Private Wealth Disputes team and is noted for his ‘deep knowledge of estates and trusts law’.

The Legal 500

Why use Hugh James?

We’re a top 100, full-service law firm with offices in England and Wales. Our team of solicitors has over 50 years’ experience in contesting wills and defending will disputes and is top ranked by both Legal 500 and Chambers and Partners, the leading legal directories, with a number our solicitors being ranked as leading individuals.

Our solicitors have also gained specific industry accreditations through STEP (formerly the Society of Trust and Estate Practitioners), ACTAPS (the Association of Contentious Trust and Probate Specialists) and Solicitors for the Elderly.

Client case study

Watch one of our clients speak about how she was able to contest her uncle’s will following concerns that he was subjected to undue influence and fraud when he was elderly and vulnerable. Click the video below to hear her story.

Matthew Evans acted for the successful claimant in the leading case involving contesting a will for undue influence of Re Edwards [2007] EWHC 1119 (Ch). The claimant, John Edwards, contested the will of his late mother, Winifred Victoria Edwards, which left the whole of her estate to her other son, Terry. John’s claim was that Terry had deliberately poisoned his mother’s mind by making untruthful accusations against John and his wife, Carol, with the effect that their mother’s free will was “overborne” such that she changed her will to favour Terry.

The High Court found in favour of John and held that the will should be set aside for undue influence, specifically on the basis of “fraudulent calumny”, a type of undue influence which involves one person “poisoning” the mind of another in the hope of them changing their will to exclude another person.

This case remains one of the leading cases on contesting a will for undue influence, specifically, fraudulent calumny.

Hugh James acted for a claimant who was contesting her late uncle’s last four wills on the basis that:

three of the wills had not been validly signed and witnessed in accordance with section 9 Wills Act 1837
the other will was made at a time when the deceased had been extremely vulnerable and therefore susceptible to the influence of others.

During his lifetime the deceased, an elderly gentleman, had invested in a number of questionable investments involving rare metals and wine portfolios and soon became the target of numerous scams. He was befriended by one of the employees of one of the wine investment companies who went under a pseudonym and, over the course of a number of months, his investments steadily increased as did apparent gifts to the employee in his wills.

After detailed investigations and robust correspondence we were successful in having the gift to the employee set aside and we were also able to achieve an excellent result for our client at mediation against another beneficiary who had sought to secure a significant gift under that same will.

In addition to successfully contesting wills, we pride ourselves on robustly defending will claims. In a recent claim we acted for the daughter of the deceased who had left her entire estate to our client.

Our client’s half-sister sought to contest the will on the basis that the deceased lacked testamentary capacity and knowledge and approval and entered a caveat in an attempt to block the grant of probate.

It was clear from the outset that the claim had no merit but the half-sister sought to use the caveat as leverage in the hope of achieving a pay-out.

We therefore issued a claim to “prove” the last will and the half-sister immediately agreed to withdraw her challenge.

During his last years the deceased was bed-bound and totally reliant on the support of carers. His will (which was homemade) couldn’t be found after he died.

The legal dispute focused on the reasons why the will had been lost. If the will was deliberately destroyed by the deceased with the intention of revoking it, then it wouldn’t have effect, and the estate would have passed on the basis of the intestacy rules, the rules which apply where there is no valid will. On the other hand, if the will was genuinely ‘lost’, or destroyed by mistake, then it would still have taken effect.

Evidence was scarce, and it became clear that if the matter reached trial the court was going to have to decide which event was more likely, based on the individual circumstances.

We acted for a company who represented all of the intestacy beneficiaries. The opponents (the executors and beneficiaries under the lost will) argued that the will had most likely been accidentally destroyed by a third party.

We were able to negotiate a favourable settlement for the intestacy beneficiaries which avoided the costs and risk of trial.

Yes. We offer a free 20 minute telephone consultation.

In many cases we’re able to offer a range of flexible pricing options including “no win, no fee” agreements, fixed fees and deferred payment arrangements depending on each case.

Some cases may also be suitable for “After the Event” insurance funding which provide cover for the cost of disbursements such as court and expert fees as well as protecting you from any potential adverse costs order.

Get in touch to find out more.

If you are successful in contesting a will then the terms of any earlier, valid will would usually take effect. If there is no earlier will then the estate is distributed in accordance with rules set out by law, known as the intestacy rules.

As such, the starting point is to determine what you stand to inherit if you are successful in contesting a will.

In many cases it’s also possible to negotiate a settlement which avoids the costs and risks of proceeding to trial.

Each case is unique and so how quickly your case might be resolved depends on the particular circumstances. However, with one of the largest contested wills teams in the UK with over 50 years’ experience in contesting wills, and with recognised leaders in the field of contesting wills, you can rest assured that your case is in good hands and that we’ll work with you to resolve your claim as quickly as possible.

Anyone who is likely to benefit from an earlier will or on intestacy (where there is no earlier will) is able to contest a will.

If property is given away in a will, which was either gifted or promised to you during that person’s lifetime, you may also be able to challenge this.

If you’ve been left out of a will or didn’t inherit as much as you had expected then you may also be eligible to bring a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

If you were meant to benefit under a will but didn’t due to a failing by a professional preparing the will, you may be able to make a professional negligence claim.

Each case is different but our experience in this area means that we can advise if you have a possible claim to contest a will or if you need to defend a claim to dispute a will.

We offer free, no-obligation consultations and flexible pricing options, tailored to your needs.

Most claims involving contesting a will are resolved without the need for court proceedings. Of those cases which do proceed to trial, the general rule is that the losing party pays the majority of the winning party’s costs.

Each case is different and our experienced solicitors have a strong track record of achieving excellent results for our clients and providing frank, no-nonsense advice.

In many cases we’re also able to offer tailored pricing options. We pride ourselves on the service we provide to our clients and back this up with service level guarantees; if you feel that the service you’ve received has fallen short then we’ll offer a discount on our fees, no strings attached.

Mediation is a form of dispute resolution in which an independent person, known as a mediator, is appointed to try to broker a deal usually on a ‘without prejudice’ basis so anything discussed at mediation can’t be disclosed to the court.

The usual format involves the parties attending a mediation with each “side” having their own, private room. The mediator’s job is then to work with the you and your lawyer to try to achieve a positive settlement.

Although not suitable for every case, in our experience mediations do have a high success rate. Our experience and knowledge of contesting wills means that we’re well placed to act in mediations and are proud to have surpassed our clients’ expectations in achieving positive settlements.

If you’re considering contesting a will, the first step is usually to enter what is known as a “caveat”. This is a document which prevents a person from obtaining probate of the will you are looking to contest.

Unless the caveat is removed by agreement or is “warned off” by the person seeking to put the will to probate, it’s necessary to renew the caveat every six months.

A caveat is often a very useful tactical first step in contesting a will.

If a will has already been put to probate then it becomes a public document. Similarly a grant of probate is a public document.

In both cases, you can use the Government website to search probate records for documents and wills.

Assuming it’s not possible to reach unanimous agreement with all potentially affected parties, you may need to apply to court to ask it to construe the terms of the will or to have it rectified.

We have acted both for individuals and professionals in applications to rectify wills and in will constructions claims.

See our section above on rectification and construction of wills for more information.

A Larke v Nugus statement is an informal name for a statement from a will writer regarding the circumstances surrounding the preparation of a will which is being contested. Its name comes from a 1979 case in which the court confirmed that, in circumstances where real concerns are raised about the validity of a will which is being contested, the person who prepared the will should provide a statement.

A Larke v Nugus letter is the letter which requests the will writer to provide a statement. While such a letter can take a standard form, it’s best practice to ensure that any such letter is tailored to the specific circumstances of the particular claim to contest a will.

A Larke v Nugus letter is often the first step in contesting a will.

Yes. Provided the deceased had some link with England or Wales i.e. because they had assets here, were domiciled here (whether at death or before) or elected England and Wales as their choice of law under their will then it may be possible and, indeed, preferable to contest a will here.

We are one of the few contested wills teams in the UK with expertise in both onshore and cross-border will disputes.

What Are The Grounds For Contesting A Will