How do I challenge a Will?

This is the first in a series of articles which examine common questions that arise in the context of contentious probate as well as wider trust and estate disputes. In this article we summarise some of the options that might be available to disappointed beneficiaries who are considering challenging the validity of a Will.

Formalities

For a Will to be a valid document, it must comply with certain legal formalities. The key requirements are contained in the Wills Act 1837.  They include things such as:

  1. age – usually the Will maker needs to be at least 18 years old; and
  2. form – a Will must be in writing, signed by the testator (or by someone else at their direction), and witnessed by two or more witnesses at the same time.

There have also been temporary changes to the normal requirements for signing and witnessing Wills following the Covid-19 pandemic. You can find a separate summary of those procedures here.

It is always important to check that the correct procedures were followed when a Will was executed. If they were not, then this could be a ground to argue that the Will is invalid.

Testamentary capacity

To execute a Will, the person making the Will must have capacity. This is referred to as testamentary capacity. There is a well-established legal test for capacity in the context of Wills taken from a case in 1870 called Banks v Goodfellow.

Essentially, the test says that a Will maker must:

  1. understand the nature of making a Will;
  2. understand the size of their estate;
  3. comprehend and appreciate the claims to which they ought to give effect; and
  4. not be suffering from a disorder of the mind that compromises their ability to dispose of their property had they been of sound mind.

If you suspect that the deceased's capacity may have been impaired around the time they gave instructions for and executed the Will, then it may be worth considering whether a claim is available on the basis they lacked testamentary capacity.

Knowledge and approval

If you have doubts as to whether the deceased fully understood their Will, then it might be possible to claim that the Will is invalid for want of knowledge and approval. This is a specific question and is different to the more general question of someone's capacity. Wills can often be complicated documents and sometimes there is a breakdown in communication between a solicitor and their client when instructions are given.

If you think that the terms of someone's Will are unusual, and you question whether they would have understood the content of the Will that was prepared for them, this could be something to explore further.

Undue influence

In its broadest sense, undue influence involves some form of pressure or coercion. However, different legal tests apply depending on the circumstances. In the context of Wills, undue influence is a very difficult claim to bring. This is because the person challenging the Will must show that the Will was entered into as a result of illegitimate coercion. That can often be a very difficult thing to show evidentially.

The law also distinguishes between illegitimate coercion and legitimate persuasion. This can often be seen as a fine line, which means claims of this nature are by no means straightforward.

Revocation

If someone makes a Will, usually the effect is that the new Will revokes the previous one. So, if there is any doubt as to whether the Will in question was the deceased's last Will, it is important to make the appropriate enquiries to check the position. Whilst this may appear to be an obvious thing to check, it is easily overlooked.      

Other alternatives

There are also other options available to disappointed beneficiaries that do not involve challenging the validity of the Will itself. These include claims under the doctrine of proprietary estoppel of the Inheritance (Provision for Family and Dependants) Act 1975. Separate articles will shortly be available on these topics.

Conclusion

Sadly, it is not uncommon for a person to leave behind disappointed beneficiaries when they pass away. The most common reason for this is because the terms of their Will exclude family or friends who considered they would benefit from their estate. 

In these circumstances, those who expected to benefit from a deceased person's estate may want to explore whether it is possible to challenge the Will. Challenging a Will is not impossible but should only be undertaken having taken the appropriate advice.  It is also important to remember that it is usually only worthwhile exploring this if there is a previous Will with favourable terms, or, if a previous Will does not exist, the intestacy rules work to the challenger's favour.

If you are considering challenging a Will, or are defending a claim, and would like to discuss your options further, please contact William Coon. Please note that this article has been prepared for information purposes only and is not a substitute for legal advice.