Will Challenges

The law around Wills comes from The Wills Act 1837 and all the subsequent case law and additional law that has developed over 180+ years. It is, as a result, hugely complex and requires specialist advice from a firm with knowledge and experience in this area.

Wills can be challenged on a large number of grounds and as each person’s circumstances are unique, so will be the challenge to a Will and the defence to that challenge.

There are requirements set out in the Wills Act as to the formalities required for a Will.

Aside from challenging the validity of a Will because it does not comply with these formalities, there are a number of other bases upon which the validity of a Will can be challenged.

These in summary, are as follows:

• The person making the Will lacked testamentary capacity. Anyone who wishes to make a valid Will must be shown to be capable of understanding what a Will is and does; what the extent of their assets were at the time of the Will; and that they have a proper appreciation and understanding of those of their family and friends who could reasonably expect to receive some benefit. There are many cases where this level of understanding is not present. Examples could include somebody who is suffering from dementia or delusions.
• Wills can be challenged on the basis that the person making the Will did not sufficiently understand and appreciate what they were doing.
• The person making the Will lacked the appropriate knowledge and approval of the contents of the Will. There is a degree of overlap between this and lack of testamentary capacity. If it cannot be shown that the testator intended to create the specific terms of that Will, then it could potentially be held invalid. Let us take, for example, a case where someone had requested changes to their Will, but without reading the Will, signed a copy of an earlier draft which did not include those changes. That person might have testamentary capacity, but failed to have knowledge and approval of the contents of the will they actually signed.
• The person making the Will was unduly influenced by somebody else who benefits under the Will. Many clients who come to see us want to challenge the validity of a Will on this basis. The legal and evidential requirements mean this is a difficult claim to bring and careful specialist advice is required. That is not of course to say that there are no cases or circumstances where such a challenge can be made.
• That the Will is a forgery.

We have considerable expertise and experience in knowing what evidence needs to be gathered and what procedures need to be followed in order to assess whether there is any prospect of a Will being challenged on any of the grounds mentioned above. Our specialist Wills, Trust and Estate team will be able to tell you clearly whether there is any realistic prospect of successfully challenging the provisions of a Will which you are concerned about.