Wills
The Main Reasons a Will Can Be Challenged
Making a will is a deeply personal decision, and in many cases, family relationships, financial circumstances, and personal wishes are far from straightforward.
While it is your legal right to decide who should benefit from your estate, there are circumstances in which a will may be challenged after death.
One of the main areas of dispute is whether the will was executed properly. A will must be signed and witnessed in line with the law, and if this process has not been followed correctly, the will may be declared invalid.
Another common issue is testamentary capacity. This means the person making the will must understand that they are making a will, appreciate the value of their estate, recognise who may have a claim against it, and be free from any mental disorder that affects their decision-making.
Challenges can also arise where there are concerns over knowledge and approval. In simple terms, this means asking whether the person who signed the will truly understood its contents and whether it genuinely reflected their wishes. In other cases, allegations may be made that the will was created under undue influence, where someone was pressured or coerced into making decisions they would not otherwise have made.
Fraud and forgery can also be grounds for challenge, particularly if the will was falsified or made on the basis of dishonest information about another person.
Who Can Make a Claim Against an Estate?
A will challenge often comes from someone who has been left out of the will entirely, or who believes an earlier version of the will should apply instead. If a court decides that a will is invalid, the last valid will may take effect. If there is no earlier valid will, the estate may instead be dealt with under the rules of intestacy.
Even where a will itself is valid, certain people may still be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. These can include a spouse or civil partner, a former spouse or civil partner who has not remarried, children of the deceased, a person treated as a child of the family, a cohabiting partner who lived with the deceased for at least two years, or someone who was financially maintained by the deceased. Not every eligible person will bring a claim, and not every claim will succeed, but a claim can still create stress, delay, and significant expense for the beneficiaries of the estate.
Where a claim is made under this legislation, the court will look at a range of factors, including the claimant’s financial position, future needs, disability, conduct, and the effect any award may have on other beneficiaries. The law in this area applies where the deceased was domiciled in England and Wales, and claims generally need to be made within six months of the Grant of Probate. The court’s main concern is whether reasonable financial provision should be made for someone who is eligible and in need.
How to Protect Your Estate and Strengthen Your Wishes
Although no will can ever be made completely immune from challenge, there are practical steps that can significantly reduce the risk of a dispute. One of the most important things is to have your will professionally prepared. A properly drafted will is more likely to be technically correct, more likely to reflect your intentions clearly, and often more difficult to contest. It is also vital that the will is signed and witnessed correctly.
In some cases, it may be wise to consider additional protective measures. For example, a testamentary capacity assessment can provide strong evidence that you were fully capable of making your will at the time it was signed. Discretionary trusts can also be helpful where you do not want to leave money directly to someone because of vulnerability, disability, addiction, or concerns about financial management. Keeping your will under regular review is equally important, especially as relationships, finances, and responsibilities can change over time.
A letter of wishes can also be a valuable companion document. While it is not legally binding, it allows you to explain your decisions in your own words and can help your executors and loved ones understand your intentions. This can be especially helpful where you have excluded someone, left unequal gifts, or want to explain the support you have already given during your lifetime. The letter should be honest, factual, dated, signed, and kept up to date with your will. In many cases, being open about your wishes during your lifetime can also help reduce conflict later on.