Latest Posts

How to Challenge a Will?

If you believe you have unfairly been left out of a Will or what you have received is below expectations, then the good news is there are multiple ways that a Will can be challenged.

The main ways are:

1. challenging the validity of a Will; and
2. claims for ‘reasonable financial’ provision under The Inheritance (Provision for Family and Dependants) Act 1975 (often called “the 1975 Act“).

This article will examine Will validity claims, whilst a separate article examines claims under the 1975 Act: Claims Under the Inheritance (Provision for Family and Dependants) Act 1975.

How to Challenge the Validity of a Will

If you are considering contesting a Will, it’s important to understand the legal grounds on which a challenge can be made. This article summarises the five main claims by which a Will can be invalidated:

1. Lack of due execution
2. Lack of testamentary capacity
3. Lack of knowledge and approval
4. Undue influence
5. Fraudulent calumny

We also outline what happens if a Will is invalidated and how our team at Quastels LLP can help you navigate this process.

Protecting Your Position

If you are seriously considering a Will validity challenge, then as a first step you should consider entering a caveat at the Probate Registry. For more information on caveats, please see our related article: Probates and Caveats.

1. Lack of Due Execution

One of the first things we advise clients to check is whether the Will was executed correctly. Under the Wills Act 1837, there are strict formal requirements for a Will to be valid. These include rules about how the Will must be signed and witnessed.

If any of these formalities were not followed, the Will is invalid–regardless of whether it reflects the testator’s true intentions. In some cases, this can be a relatively straightforward way to challenge a Will, even if it is legally sound in every other respect.

2. Testamentary Capacity

Lack of testamentary capacity us one of the most common ways to challenge a Will. With people living longer and the concomitant rise of degenerative diseases such as Alzheimer’s and Dementia, there are an increasing number of old and vulnerable people making wills without the requisite capacity.

The legal test for testamentary capacity remains as set out in the 19th century case, Banks v Goodfellow (1869–70) LR 5 QB 549. There are four limbs to the test, which require that the person making the Will must:

1. understand that s/he is making a Will and what that means;
2. have a good (although not necessarily perfect) understanding of the property and assets that s/he is disposing of;
3. s/he should also be aware of the people who s/he ought to consider in his or her Will, even if to explain why s/he is not benefitting them; and
4. be of sound mind and in possession of his or her faculties of reason.

Additional points to note regarding the Banks v Goodfellow test and incapacity claims include:

• Presumption of capacity: the law assumes a person’s capacity unless there is evidence to the contrary. If sufficient doubt it raised, the burden shifts to those defending the validity of the Will.
• Capacity is relative: the degree of capacity required by the Will maker varies depending on the nature and complexity of the estate or the gift being made. This is to say, the level of capacity required to make a gift of £1,000 will be lower than that of a gift of £1,000,000.
• Testamentary Freedom: it is important to stress that English law allows people the freedom to dispose of their assets as they wish. Therefore, it is important to bear in mind that a Will maker may have motives which are capricious, frivolous, mean or even bad. A Will which is unfair or unkind is not a reason for its invalidity.

To assess a claim, the following evidence is usually required:

1. The deceased’s medical records.
2. The deceased’s Will file, where the will was drafted by a professional.
3. Witness evidence from doctors and those in close contact with the deceased around the time the will was prepared.
4. An expert report by a suitably qualified doctor to review all the evidence and give a retrospective medical opinion on the deceased person’s likely capacity.

The Will disputes team at Quastels LLP can help you gather and assess this evidence and give you a clear view on whether a claim is worth pursuing–and what it might cost.

3. Knowledge and Approval

Another major claim–often the hardest for the general public to grasp–is that a will can be invalid for “want of knowledge and approval.” In short, a testator must know and approve the contents of their Will. While this may sound similar to limbs 1–3 of the Banks v Goodfellow test on capacity, it is a separate, standalone claim. It should not be underestimated: this ground has succeeded where all others have failed.

Whereas capacity is a general question, knowledge and approval is specific. A good example is someone who cannot read – they may have the requisite capacity to make a Will but if they sign a document without understanding its contents because they were unable to read it or it was not explained to them, they would not be considered to have had the requisite knowledge and approval of its contents.

The burden of proof lies with the person seeking to uphold the Will. This claim often runs alongside incapacity arguments and can rescue a case that might otherwise fail. It is a technical area where good legal advice is essential.

At Quastels LLP, our lawyers are adept at identifying and pursuing knowledge and approval claims, often in combination with other grounds. If you suspect a will was signed without proper understanding, we can review the circumstances and advise on the best strategy to protect your interests.

Undue Influence

A Will may be challenged under English law on the grounds of undue influence–a claim that is difficult to prove, with few cases succeeding.

To establish undue influence, it must be shown that the testator was subject to such influence at the time the will was executed and, as a result, was coerced (or fraudulently misdirected) into making it. Mere suspicion is not enough: the facts must be “inconsistent with any other hypothesis”. In other words, there must be no plausible explanation for the will other than undue influence–a very high threshold.

The Court of Appeal in Rea v Rea reinforced this difficulty, confirming that influence alone is not unlawful. To succeed, there must be evidence–or strong influence–of actual coercion, such that the testator’s free will was overborne and dominated by another person.

It is also important to note that unsuccessful undue influence claims can result in adverse costs orders, meaning the claimant may be required to pay the opponent’s legal costs. For this reason, it is always prudent to seek specialist advice early, so the merits of any potential claim can be properly assessed.

Unlike challenges based on lack of capacity or want of knowledge and approval, the burden of proof in undue influence cases rests entirely on the party alleging it.

Fraudulent Calumny

Fraudulent calumny is a distinct claim, though often compared to undue influence. It arises where:

“[Party] A poisons the testator’s mind against [Party] B–who would otherwise be a natural beneficiary–by casting dishonest aspersions on B’s character.”

To succeed, a claimant must approve all three elements:

1. False statements: Party Q made false statements about you to the testator regarding your character;
2. Knowledge or recklessness: Those statements were made knowing they were false, or with reckless disregard for the truth; and
3. Causation: You would have been a natural beneficiary but for Party A’s conduct.

Although clients often wish to explore this route, fraudulent calumny is the most challenging of all Will-dispute claims. Like undue influence, it carries significant cost risks if unsuccessful. For this reason, prospective claimants should always seek specialist advice before proceeding.

What Happens Next?

If a Will is successfully invalidated, the testator’s previous Will usually takes effect. If there is no earlier Will, the estate will be distributed under the intestacy rules.

It is therefore crucial to consider the practical consequences of a Will challenge. For example, if an earlier will contains similar provisions, the effort and cost of litigation may achieve little. In some cases, multiple Wills may need to be contested to achieve the desired outcome.

For these reasons, clients should always seek specialist advice before proceeding, to ensure that any potential claim is both viable and worth pursuing.

Costs

The general rule in litigation is that the unsuccessful party pays the successful party’s costs. Probate disputes, however, allow for an important exception: where investigations were justified, the Court may order the deceased’s estate to cover the costs of any reasonable inquiries.

In rare cases, claimants may also recover costs from professional Will-drafters if their failure to keep proper records or follow established drafting conventions contributed to the dispute.

If you are concerned about potential costs, seek specialist advice early. A professional can help assess the merits of your claim and advise on strategies to minimise financial risk.

Conclusion

Whilst there may be ways to challenge a Will, potential claimants should obtain specialist advice as soon as possible in order to secure crucial evidence and to assess the merits of any claim before embarking on potentially risky litigation. The Will disputes team at Quastels LLP is adept in helping claimants at all stages of their claim.

Read More

The English Concept of Domicile and How to Challenge It

This article examines the English concept of domicile, explaining why it is important and should not be confused with residency, nationality or immigration status. It also considers the evidence the English Court will examine when a person’s domicile is challenged.

The English concept of domicile is based on English common law, i.e. historic case law, and it is different to what might be understood by the term ‘domicile’ in other jurisdictions, in particular civil jurisdictions where the term domicile for the most part is interchangeable with residency. It is also not uncommon for people, especially internationally mobile HNW individuals and executives, to have a domicile which is different to their residency and/or nationality. The English meaning of domicile can be partly understood as meaning someone’s “permanent home”.

The Law

There are three types of domicile: a domicile of origin, a domicile of choice and a domicile of dependency.

1. Domicile of Origin

In English common law, every person is born with a domicile of origin, which is then their domicile until it is displaced notwithstanding that it is possessed involuntarily. The domicile of origin of a legitimate child born during the lifetime of his father is his father’s domicile at the time of birth.

For the avoidance of doubt a domicile of origin cannot be chosen and can only be lost if a new domicile of choice (see paragraph 2 below) is acquired. A person’s domicile of origin remains their default domicile for their entire life but can in certain circumstances revive if a person’s domicile of choice is abandoned (see paragraph 3 below).

2. Acquisition of Domicile of Choice

Once 16 years old, a person may displace their domicile of origin by acquiring a domicile of choice. A person acquires a domicile of choice in another jurisdiction by residing there with an intention to do so permanently or for an unlimited time. Therefore, there are two distinct parts to acquiring a domicile of choice, namely:

1. the individual must physically reside in their country of choice (rather than be a mere traveller or occasional visitor); and
2. have an intention to reside in that jurisdiction permanently and indefinitely, which intention is not limited for a particular period or particular purpose.

It is the second limb of this test which can mean a domicile of choice is hard to obtain despite many years or even decades of residency in a foreign jurisdiction. Direct evidence that the individual in question intended to reside permanently in his chosen jurisdiction of residence is required before s/he can definitively be said to have lost his or her domicile of origin and acquired a new domicile of choice. This notwithstanding:

1. If a person determines to spend the rest of his life in a jurisdiction, then he has the necessary intention, even if he does not consider that decision to be irrevocable. The absence of any intention to leave may suffice.
2. It will not be sufficient if there is an intention to return to the jurisdiction of previous domicile at some point, so that although present residence is indefinite, it is not unlimited in time, unless that intention is so vague as not to be properly formed.

3. Loss of Domicile of Choice

If a domicile of choice is never acquired, or is acquired but then abandoned, the domicile of origin will prevail (i.e. revive).

A domicile of choice is abandoned by giving up both the residence and the intention necessary for its acquisition in the first place.

4. Domicile of Dependency

This concept is less relevant today but is still worth bearing in mind:

1. Legitimate children up to the age of 16 are dependent on their father’s domicile, as set out above. Where a child is born out of wedlock or their father is deceased, they may take on their mother’s domicile.
2. Women who were married before the Matrimonial Causes Act 1973 came into effect in 1973 took on their husband’s domicile.

Why is Domicile Important?

The English concept of domicile matters because it determines which legal system has the strongest claim over a person’s life for core issues such as taxation, succession, and jurisdiction. It is far more enduring than residence and often decisive in private wealth disputes.

Tax

Domicile is central to determining an individual’s exposure to UK taxation, particularly inheritance tax. It dictates whether a person is taxed on their worldwide estate or only on UK-situated assets, and it governs access to favourable regimes historically available to non-UK domiciled individuals. Because domicile is difficult to change and heavily intention-based, it often becomes a decisive issue in tax planning and disputes involving internationally mobile clients.

Succession

In cross-border estates, domicile determines which country’s succession laws apply on death. This can affect the validity of wills, the distribution of assets, and the interaction with forced-heirship regimes overseas. In contentious private wealth matters, establishing a deceased’s true domicile frequently shapes the entire litigation strategy, as it may determine both the applicable law and the rights of competing beneficiaries. For example, to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, the deceased must have died domiciled in England and Wales.

Family Law

Domicile also plays a significant role in family law, influencing jurisdiction for divorce, financial relief, and the recognition of foreign marriages or divorces. Because domicile is treated as a person’s “personal law,” it can affect questions of capacity and personal status. Its enduring nature means that domicile often anchors jurisdiction even when individuals have lived in multiple countries.

How to Challenge Domicile

Where domicile is in dispute, it must be determined by the English Court, which will normally order a hearing so that it can review all the facts and come to a decision. The burden of proof for proving that an individual has acquired domicile of choice is that of the person or entity alleging it.

Domicile disputes are very fact sensitive and judges have a wide amount of discretion to decide them. Therefore, trials regarding domicile can be unpredictable and each case will turn on its own specific facts.

However, the court will tend to examine the following categories of evidence before making an overall assessment on the balance of probabilities:

Family Background: the court will want to review a person’s family background in detail including the birthplace of parents and grandparents. It will also examine marriages, divorces and conduct a careful review of where the person in question lived as a child and with whom. The court will also examine a person’s current family including the birthplace and nationality of any spouse and children. Family ties are also important and the court will look to understand where close family members reside and where a person’s children are educated, as this can indicate where a person’s ‘domicile’ or ‘permanent home’ might be.

Physical Presence: the court will want a full history of where the person in question has lived and why, i.e. for school, work etc. Dates of residence in a particular country and intention regarding residence there will be examined. The court will also examine residency, where a person pays taxes and what citizenship they hold. It will also require information on visits to a person’s country of birth and will want to examine a person’s relationship with their country of origin.

Property and Assets: the court will want to know where a person owns property and hold assets. This includes the location of any family home, pensions, bank accounts, investments etc. The analysis can be quite granular and the court may go as far as to examine which bank accounts etc. are or have been used most frequently to understand where a person has been resident or visits most frequently.

Social Ties: the court will even go as far as examining a person’s social ties, including if they belong to any clubs, what football team they support and where their registered doctor and dentist are located. They will also look to understand where a person has voted and what causes or interests he or she support.

Therefore, for highly mobile individuals, a domicile challenge is likely to involve a significant examination of their personal life. Small and seemingly insignificant details can make all the difference and should not be underestimated.

The Private Wealth Disputes team at Quastels LLP are adept at advising clients on all aspects of domicile, including when to issue or defend a domicile challenge.

Read More

Year-End Insolvency Review 2025 – What Mattered Last Year?

2025 was the year the courts set firmer ground rules. In addition to new laws, we have seen judges placing more emphasis on Schemes and Restructuring Plans, pre-packs and phoenix-type deals, and also the enforceability of foreign judgments in UK insolvency processes.

Below is a short, practical summary of what changed and why it matters.

Schemes and Restructuring Plans

A new Practice Statement for Schemes of Arrangement (Part 26) and Restructuring Plans (Part 26A) applies to hearings from 1 January 2026. The effect is substantial as much more needs to be done upfront as the courts expect a more disciplined, court-controlled process:

1. You must issue a claim form before getting a hearing date;
2. A detailed listing note is required at the outset, covering likely contested issues, time estimates, class questions and anything affecting timetable;
3. Evidence – including valuation and “relevant alternative” materials – must be substantially ready before the convening hearing;
4. Arguments, issues and grounds need to be properly developed well in advance – scrutiny is now firmly front-loaded; and
5. Creditors who want to object must do so before the hearing, to limit ambush tactics.

The result is that schemes and restructuring plans now look and feel far more like managed litigation than flexible restructuring tools. Preparation standards are much higher, timetables tighter and poorly prepared proposals are unlikely to gain momentum.

Phoenixism, Pre-Packs and Enforcement Pressure

One of our busiest areas in 2025 has been the renewed attention on pre-pack deals and directors’ conduct, as the Challenge Recruitment Group collapse has become the case everyone cites when discussing why. In brief terms:

1. There has been renewed attention on corporate structures that recycle assets through pre-packs while leaving material unsecured creditor claims – especially HMRC – behind.
2. HMRC has intensified its attention on how and why phoenixism is costing the UK billions – around 22% of the £3.8bn tax losses in 2022-23.
3. This has drawn political and regulatory scrutiny and sharpened focus on the advice given to boards and office-holders.
4. HMRC, the Insolvency Service and Companies House have been explicitly directed to work more closely to clamp down on “contrived corporate insolvencies.”

As a result, director-conduct and disqualification enforcement has become more assertive. The emphasis is on substance over form. For boards, the point at which the creditor interests must take precedence is now difficult to ignore. For advisers, restructuring strategy needs to be developed with enforcement risk in mind.

Foreign Judgments: No Fast Track to Insolvency

Another important, if quieter, development in 2025 came from Servis-Terminal LLC v Drelle. The Court of Appeal confirmed that an unrecognised foreign judgment cannot support a statutory demand or bankruptcy petition in England and Wales, and the reasoning is likely to apply equally to winding-up petitions. In doing so, it reaffirmed the core principle that a foreign judgment has no legal effect until it is recognised, whether under a statutory regime or through common-law action.

A further practical consequence of this decision is the continued emphasis to seek recognition of foreign insolvency proceedings. Insolvency practitioners appointed overseas will generally need to take an additional step to obtain recognition in England and Wales before they can exercise powers, seek relief or engage UK insolvency processes.

For all stakeholders, the message is clear that recognition process is not an optional preliminary and that foreign insolvency/proceedings do not take effect automatically in this jurisdiction.

Looking Ahead at the Emerging Pressure Points

Looking ahead, and given our combined expertise, we also set out a few areas where pressure is building (even if not driven by formal insolvency legislation):

1. Property-related exposure.
   • Obligations under the Leasehold and Freehold Reform Act 2024 and the Building Safety Act 2022 continue to bite. Contribution orders, defect-remediation duties and landlord/tenant liabilities increasingly can reduce recoveries and can influence director-conduct analysis well before formal insolvency.
2. Digital Assets, Cyber Risk and Offshore Assets
   • These developments sit alongside a growing practical focus on digital assets, including cryptoassets, whose status as “property” is becoming increasingly clearer. For insolvency practitioners, however, legal classification is only the starting point. Volatility, asset pooling, evidential complexity and the practical irreversibility of certain blockchain transactions present real challenges in tracing, securing and realising value. As with cross-border enforcement, success in this area increasingly depends on early strategy, specialist input and close coordination between legal, technical and international advisers.

The above is a snapshot of some of the issues now arising and while deeper, specific advice can be provided, the direction of travel is clear in that insolvency practice now requires not only legal judgment but also technical capability and cross-disciplinary collaboration.

To discuss any of the points raised in this review, or for more assistance with your matters, please contact Robert Kay (Partner) and Ann Goh (Associate) or fill in the form below.

This article does not constitute legal advice.

Read More