How do I contest a will in England? Part 1

We are frequently asked, ‘How do I contest a will in England?’ In response to this we have prepared a two part legal guide to contesting a will in England.

Questions about contesting a will are usually raised by people who have been removed from a will, although occasionally it is because an unexpected person has been added to a will or receives much more of the estate than had been anticipated. Whatever the reason, in Part 1 of this guide ‘How do I contest a will in England?’ we look at the grounds upon which a will can be contested under English law.

It is worth noting that the law referred to in this article applies to both England and Wales. Scotland has its own legal jurisdiction. The position in Northern Ireland is also different.

You can read Part 2 of our guide here.

Grounds for contesting a will in England

A will can be contested on the following grounds:

  • Lack testamentary capacity;
  • Lack of valid execution;
  • Lack of knowledge and approval;
  • Undue influence;
  • Fraudulent wills and forged wills; and
  • Rectification and construction claims.

Lack of testamentary capacity

This is one of the more common reasons that a person contests the validity of a Will.  To be successful you must establish that the testator (that is the person who made the will) lacked sufficient capacity to:

  • Understand that they are making a will;
  • Understand the nature and extent of their estate;
  • Consider who they owed an obligation towards when distributing their estate

There is also a further requirement. To execute a valid will, a person must not be suffering from an affliction which poisons their affections.  In other words – not be suffering from a delusion or belief which causes them to amend the terms of their will.

There are a variety of reasons why someone might lack testamentary capacity, including certain medical conditions.

If you believe that this might be a valid ground for contesting a will then please give our free helpline a call.

Lack of valid execution of a will

In order for a will to be valid it must be signed by the testator in the presence of two witnesses who are present at the same time and both witness the testator’s signature before signing the will themselves.

You would be surprised how often this seemingly simple process goes wrong, particularly when a will is drafted and signed without the input of a solicitor.  If this process is not followed then the will should be declared invalid.

Our investigations frequently uncover procedural irregularities which overturn the validity of the will.

Lack of knowledge and approval

This applies if the testator did not know or approve the contents of their will.  It is unlikely to apply when a will is signed in front of a solicitor (because it is the solicitor’s job to make certain that his client fully understands) and instead usually applies to homemade wills, but there are exceptions.  A variety of factors are relevant, such as the length and complexity of the will, the testator’s ability to comprehend information and their ability to see the will.

Undue influence

Undue influence is another reason that wills are often challenged.  There are many behaviours which may amount to undue influence.  In short it is a course of behaviour which is designed to put the testator under such pressure, that they feel they have no option but to change their will in order to keep the influencer content.

There may well be direct evidence of excessive influence being exerted.  Equally a “drip drip” approach may have taken place.  The starting point is to ask, “do the terms of this will make sense?”

If there is no obvious reason why a person has been left out of a Will (or indeed added to it) then it may well be that undue influence has taken place.

You will need to consider whether there is any evidence to support your assertion that undue influence has taken place.  Circumstantial evidence is often relevant to this form of invalidity challenge but it is regarded as something that is very difficult to prove..

Fraudulent wills and forged wills

This invalidity challenge really speaks for itself.  It also includes the situation where the terms of a will are altered as a result of a deliberate lie.  For example:

Persons A and B are both beneficiaries.  Person A tells the testator that person B is stealing from them.  Person A knows that this is untrue (or ignores the possibility that it might not be true).  Consequently the testator removes person B from their will.

Person B may be able to have the will declared invalid as a result of Person A’s lie.

This is a difficult argument to run, but with good and clear evidence can be successful.

Rectification and construction claims

This is not strictly a method to have a will declared invalid.  Instead it relates to a will which does not reflect the testator’s wishes on account of a clerical or negligent drafting error.

A construction claim can be brought when the terms of a Will are unclear or ambiguous.

How we can help

If you are wondering, ‘How do I contest a will in England?’ and are looking for guidance from a leading firm of specialist solicitors then call our free legal helpline on 0333 888 0409 or email brief details to us at [email protected]

How do I contest a will in England? Part 1