Victoria Riddleston
Senior Associate Solicitor
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Date Published:05 Jan 2017 Last Updated:28 Jul 2021

Challenging a Will

Dispute Resolution

A person can challenge a Will for a number of reasons. Broadly speaking, contesting a Will can be split into three categories:

  1. Will challenges relating to the testator’s understanding of the Will;
  2. Will claims relating to the formation of the Will; and
  3. Claims under the Inheritance (Provision for Family and Dependants) Act 1975.

There are also a number of claims relating to estates, for example, claims against executors and proprietary estoppel claims.

Challenging a Will: understanding

A testator must have the requisite mental capacity to make a Will, and therefore a Will may be challenged on the basis that there was a lack of testamentary capacity. A testator must also know and approve the terms of their Will; if they sign a Will without knowing and approving it, it will be invalid.

Challenging a Will: formation

A Will must be properly executed (further details of which are set out in this blog). The Will must also be made by the testator free from any undue influence or force. If a Will does not comply with the correct formalities or is created as a result of undue influence it will be invalid. A claim to rectify the Will may also arise if an error is made in the creation of the Will (More information can be found here)

Challenging a Will: Inheritance Act claims

Claims made under the Inheritance (Provision for Family and Dependants) Act 1975 are made on the basis that reasonable provision has not been made for the applicant from the deceased’s estate. My colleague, Lauren Day, has explored this area further in a series of blogs. Unlike Will challenges relating to understanding or formalities, an Inheritance Act claim will not invalidate a Will. Instead, the last Will shall stand and any award will alter the distribution of the estate (the persons affected will depend on the terms of the Will).

What happens if a Will is successfully challenged.

If a Will is successfully challenged, it will be declared invalid, and the last valid Will shall take effect. If there is no previous Will, the estate is distributed according to the rules of intestacy.

If a rectification claim succeeds, the Will shall be remain in force but is rectified accordingly.

Our team of experts are experienced in all areas of contentious trust and probate, including challenging a Will. If you wish to discuss any issues arising from this blog, please feel free to contact me at victoria.riddleston@ellisjones.co.uk or 01202 057768.