Grounds for contesting a will

There are various grounds you may be able to rely on if you want to contest a will.

The most popular basis for contesting a will is on grounds of lack of mental capacity. Anyone making a will must have the appropriate level of mental capacity. Lawyers refer to this as ‘testamentary capacity’. If that level of capacity was not held when the will was made then a challenge is likely to succeed.

Assessing whether someone has testamentary capacity however is not straightforward. For instance, many people assume that if the will maker had dementia then they would lack capacity, but in reality it is far more complex than that. We have to consider each individual case on its own facts.

Closely linked to mental capacity, but separate and distinct grounds nevertheless, is to challenge the validity of a Will on the basis that the maker of the will lacked knowledge and approval. Again this is a complicated legal principle and calls for specialist guidance.

Undue influence is another of the grounds for challenging a will, but it is notoriously difficult to do so successfully. The law acknowledges that an element of influence is involved in the making of virtually every will. The circumstances therefore have to be extreme for an allegation to be upheld and successful challenges generally involve an element of physical coercion.

Other grounds for contesting a will include failure to follow the correct legal procedure and fraud.

In addition the provisions of a will can be contested under the Inheritance (Provision for Family and Dependants) Act 1975 it fails to make adequate financial provision for someone who is protected under that legislation, such as a spouse, partner, child or dependant. A successful Inheritance Act claim does not mean that the will is invalid, it simply allows the court to modify the contents of the will to make financial provision for the claimant.

More detailed information about contesting a will on each of these grounds is available under the accompanying menu.