How to challenge a will

This article first appeared in EPrivateClient on the 18th August 2020.

Recent statistics published by the Ministry of Justice evidence that disputes in the High Court over wills continue to increase year on year. Modern family dynamics (primarily) arising from second marriages and step children and/or half brothers and sisters as well as increased house prices are likely the most obvious reasons for the upward curve. Estates are worth more and consequently considered worth fighting over, particularly when there is no love lost between the parties. Further factors for the increase may be that individuals live longer sometimes with dementia or capacity issues, and the fact that there are frequently multiple jurisdictions and different cultures involved.  

188 cases are reported to have been made in the High Court in 2019 alone (falling within the Inheritance (Provision for Family and Dependants|) Act 1975). When considering this figure it is also important to bear in mind that the reality of this type of dispute is that in fact very few cases percentage wise are likely to make it to a final court hearing. This is because the parties to an inheritance dispute will more commonly reach an agreement out of court through mediation or another form of alternative dispute resolution.

A will can be challenged on the basis that it is invalid for any of the following reasons:

1. The will has not been correctly executed. A will must be in writing (handwritten or otherwise) and must be signed by the person making the will in the presence of two witnesses. It must then be signed by the two witnesses, in the presence of the person making the will, after she or he has signed. As a consequence of the current coronavirus pandemic, the Ministry of Justice announced last week that wills witnessed via video link will be legally recognised (backdated to start on 31 January 2020) with the changes to remain in place until 31 January 2022 or “as long as deemed necessary”.  
2. The person making the will lacked the necessary mental capacity. An individual will be considered to have sufficient mental capacity to make a will if he understands the nature of the act of making a will and its effect, the extent of his property and the individuals for whom he is morally bound to provide and the consequences of not providing for those individuals.
3. The person making the will lacked knowledge or approval of the contents of their will. These claims invariably arise when the circumstances surrounding the making of a will appear to be suspicious, so it must be proven that the person knew of and understood the contents of their will.
4. The person making the will was subject to undue influence. Concerns may arise that they were pressured into making a will they would not have made had it not been for the coercion of another.
5. The will is forged or fraudulent. The signature of the person purported to have made the will has been forged either before or after their death or someone has missed out, or alternatively benefited, on the basis of misrepresentations made by another person.

Alternatively, a claim may be made under the Inheritance (Provision for Family and Dependants) Act 1975, which enables certain categories of persons to make a claim against an estate provided it can be shown that they were financially dependent on the deceased and that adequate provision was not made for them in the Will. Any claim under the 1975 Act must be made within six months of the issue of the Grant of Probate. These claims are particularly effective for surviving spouses.

The risk of a claim against an estate can often be reduced by ensuring quality legal advice is obtained in relation to the preparation of a Will and a clear record made as to the reasons for the decisions made as to who should benefit (whether in the body of the document itself or a separate letter of wishes). If a dispute does arise, early legal advice is also recommended in order that effort can be made to resolve the situation without recourse to the court and at minimum cost.

Further information

If you would like to discuss any points raised in this blog, please contact a member of our Wills, Trusts and Inheritance Disputes team. You may also be interested in our Wills, Trusts and Inheritance Disputes webpages, including our frequently asked questions page.

About the author

Katherine Pymont is a Senior Associate in our  Wills, Trusts and Inheritance Disputes team.

Katherine's expertise includes challenging the validity of wills (including claims for lack of testamentary capacity, want of knowledge and approval, fraud, forgery and undue influence), claims under the Inheritance (Provision for Family and Dependants) Act 1975, removal of executors and trustees, breach of trust claims, fraud cases involving trust structures and professional negligence claims relating to wills and trusts. She also works in Court of Protection matters including the appointment and removal of deputies and acting on behalf of deputies in seeking to recover misappropriated assets.