Challenges to Wills

There a number of grounds upon which the validity of a will can be challenged.

Formal requirements

With the growth of cheap internet 'DIY wills' there has been an increase in the number of disputes over wills in terms of the formal requirements to make a valid will. For a will to be valid it must follow the requirements of S.9 of the Wills Act 1837, and the essential features are:

  • The will must be in writing.
  • The will must be signed by the testator or signed on his behalf.
  • The signature must be witnessed by a minimum of two witnesses.
  • The testator must sign or acknowledge his signature in the presence of both witnesses. 
  • The witnesses must sign or acknowledge their signatures in the presence of the testator but not necessarily in the presence of each other.

If these requirements are not followed then the will could be invalid.

Testamentary capacity

To be able to make a valid will, the testator must have had mental capacity at the time of making the will. Mental incapacity can arise as a result of a mental disability but the mere fact that someone is mentally ill does not necessarily mean that they will automatically lack testamentary capacity. Ascertaining whether someone has testamentary capacity is often a difficult, lengthy exercise and usually requires specialist medical advice as well as evidence from family members and others who knew the deceased. If the testator did not have testamentary capacity then the will is invalid.

Lack of knowledge and approval

A will can also be challenged where it is thought that the testator did not know or approve of the contents of the will. Knowledge and approval is usually presumed where the testator had mental capacity and the will has been properly executed; however, a claim on this basis is fairly common where a beneficiary has been involved in the preparation of the will. In such a case there can be a genuine concern that the testator may not have had the necessary knowledge and approval of the contents of the will he was executing.

Force, fear, fraud and undue influence

A person must be free to make their will voluntarily. If it is found that someone was forced into signing a will then it will be invalid. Evidence of fraud can also make the whole or part of the will invalid (For example, forgery or purposely misleading the testator as to the contents of the will as it is being read to him). It is worth noting that a challenge to a will of this sort can be difficult to prove, and clear evidence will be required to succeed.

If a will is invalid the estate will be distributed in accordance with an earlier valid will. If there is no earlier will the deceased is treated as having died intestate - i.e. without having made a will. This means that the estate will be distributed according to the rules of intestacy. It is therefore important to consider the potential effect on the entitlement to the estate should a challenge succeed.

If you are considering challenging the validity of a will, or alternatively defending a claim, it is important that you seek legal advice and/or assistance at your earliest opportunity. Robert Horsey, head of Ashfords' Wills, Trusts and Estates Disputes Team, is able to provide specialist advice and representation.

If you would like advice on challenging a will, or indeed on any other inheritance or trust dispute, please contact our Disputed Wills, Trusts and Estates Team by telephone on +44 (0)1884 203 018 or FREEPHONE 0800 0931336 or by email willdisputes@ashfords.co.uk.

Key Contact

Robert Horsey

Partner and Location Head, Tiverton

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+44 (0)800 0931336


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