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:
- challenging the validity of a Will; and
- 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:
- Lack of due execution
- Lack of testamentary capacity
- Lack of knowledge and approval
- Undue influence
- 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:
- understand that s/he is making a Will and what that means;
- have a good (although not necessarily perfect) understanding of the property and assets that s/he is disposing of;
- 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
- 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:
- The deceased’s medical records.
- The deceased’s Will file, where the will was drafted by a professional.
- Witness evidence from doctors and those in close contact with the deceased around the time the will was prepared.
- 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:
- False statements: Party Q made false statements about you to the testator regarding your character;
- Knowledge or recklessness: Those statements were made knowing they were false, or with reckless disregard for the truth; and
- 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.
