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Challenging a Will

First, a Will must be valid.  Hopefully, anyone making a Will is either aware of the correct procedures to be followed when executing it or has instructed a lawyer to ensure that this is the case.  

Importantly, this must include the Testator signing the Will whilst watched by two independent witnesses who then both sign the Will whilst watched by both the Testator and the other witness.  

Otherwise, it will quite literally not be worth the paper it is written on.

However, there are other ways in which the validity of a Will can be challenged: –

• Mental capacity – whether or not the Testator had sufficient mental capacity (known as “testamentary capacity”) to make the Will and whether he or she was free from any undue influence. 

These can be nuanced situations particularly where the Testator later did lose capacity such that it may be necessary to establish whether they had capacity on any particular day. 

They may alternatively have been suffering from delusions which can be difficult (although not impossible) to prove but devastating for someone excluded from a Will inappropriately.

• Beneficiaries who are excluded – a Will can also come under attack after the Testator has died from parties who are not in the Will or from disgruntled beneficiaries who believe that they are entitled to a greater share of the estate. 

In particular, the Inheritance (Provision for Family and Dependants) Act 1975 provides that the Courts (in England and Wales) can determine whether or not sufficient provision was made in a Will for a claimant who falls within the provisions of that Act. 

This includes not only spouses, civil partners and children but also others who allege that they were dependent on the Testator. The Court has wide powers under this Act essentially to change the terms of the Will to include provision (or greater provision) for such claimants if they can persuade the Court of their need for reasonable financial provision. 

The Act also applies where there was no Will at all, and the rules of intestacy apply. Such cases need careful handling on both sides since, not only will a successful claim reduce all the other beneficiaries’ shares of the estate, but the costs involved will further reduce the estate and/or their shares.

• Broken promises – there are also occasionally instances where a Will might be challenged on the basis that the Testator had made a binding assurance to leave certain property to someone who relied upon that promise, but the Testator then changed their mind. Such claims are known as “proprietary estoppel claims” and require specialist advice.