In England & Wales, you can leave your estate to anyone you choose, such as a charity, relatives, or friends. However, if someone is excluded from a will or does not receive as much as they expected from an estate, contesting a will may be necessary to ensure a fair outcome or make a claim against the estate.

How can our solicitors help with contesting a will?

Will, trust or estate disputes can involve limitation periods and risk. Whatever type of claim you may be considering or dealing with, it is important to seek specialist legal advice as soon as possible.

Our dedicated team of contentious probate solicitors can advise you about any claims involving wills, trusts or estates.

Will validity

What are the grounds for contesting a will?

There are a number of reasons why a will or codicil can be declared invalid, for example, if the will or codicil has been forged or it is not signed in a particular way. To be valid, the person making the will must also:

• Have had the ‘testamentary capacity’ (a certain level of mental capacity) required to make a will;
• Have been free from any undue influence when they made their will
• Have known of and approved the contents of their will

Testamentary capacity

What is testamentary capacity?

For a will or codicil to be valid, the person making the will (known as the testator) must have testamentary capacity.

Testamentary capacity is different to general mental capacity. It is a specific test, which requires that the testator understands:

• The size and nature of the estate (i.e. what their assets are and their value);
• Those people for whom they should consider making financial provision in their will e.g. children, a spouse or partner; and
• The nature of the act of making a will and its effect.

The testator must also not have suffered from any ‘disorder of the mind’ or ‘paranoid delusions’ which may have poisoned their affections for someone and affected how they made their will or codicil.

Does ill-health automatically invalidate a will?

If there are concerns about the testator’s health at the time of making the will or codicil, further investigation is necessary. Certain illnesses, medications, or treatments can affect testamentary capacity. For instance, severe dementia might prevent someone from recalling all the people they should include in their will or understanding the value of their estate.

You can contact our specialist team of contentious probate solicitors who will be able to advise you further about this.

Undue influence

What is undue influence?

Undue influence arises when someone pressures or coerces the testator into drafting their will in a specific way.

How does undue influence occur?

Undue influence can take a number of forms. In some cases, it may be direct e.g. by making a threat. In other cases, the pressure placed on a testator may be less obvious, or even unintentional. For example, if a vulnerable person is reliant upon someone else for their care, support or well-being, they may feel obliged to include that person in their will (whether or not they want to do so).

Another form of undue influence is where the testator is concerned that care, support or family contact may be withdrawn if they do not leave their estate in a particular way.

Not every vulnerable person will be subject to undue influence and not every person in a position of care or support will exert undue influence. A testator may want to recognise someone who has helped them in their will and, provided that is their choice (free of any undue influence), they can do so.

Why does undue influence invalidate a will?

A will should record the wishes of the testator (person making the will) and not someone else. The testator should be free from any pressure to either make a will, change their will or leave their estate in a particular way.

Undue influence can be difficult to prove and it is a serious allegation to make.

If you think that a testator may have been subject to undue influence, it is important to consider this and also the other grounds for contesting a will (see testamentary capacity and (lack of knowledge and approval) before deciding on how to proceed.

If you wish to contest a will or codicil on the grounds of undue influence you should obtain legal advice. Our specialist team of contentious probate solicitors can advise you about this type of claim.

Lack of knowledge and approval

What is knowledge and approval of a will?

To validate a will, the testator must sign it correctly and possess the necessary testamentary capacity. The law assumes the testator knows and approves the will’s contents, ensuring its validity.

When does lack of knowledge and approval occur?

In some cases, concerns may arise that the testator did not understand or approve the contents of their will, prompting the court to seek evidence. For instance:

• The testator may have been blind, illiterate, deaf, or had another disability that affected their ability to comprehend and approve the will.
• Someone else may have signed the will on behalf of the testator.
• The will may include complex or significant changes from previous versions without explanation.

If the court declares a will invalid, it may admit an earlier will or codicil to probate. Without an earlier will, the person may have died intestate.

If you have concerns about the validity of a will or codicil, our specialist contentious probate solicitors can provide advice and guidance.

Intestacy

What is intestacy?

Intestacy occurs if a person has not made a will or a will is declared invalid and there is no earlier will made by the testator.

In England & Wales, if a person dies intestate, the Intestacy Rules will apply. These rules dictate how the estate will be administered.

Do unmarried couples inherit under the Intestacy Rules?

The Intestacy Rules do not currently make any provision for surviving partners who were either unmarried or did not have a civil partnership at the date of their partner’s death.

However, some cohabiting partners may be able to bring a claim against their partner’s estate for ‘reasonable financial provision’ under the Inheritance (Provision for Family and Dependants) Act 1975.

If you are concerned about lack of provision from an estate, please contact us to arrange a telephone consultation.

Will fraud

Fraud can invalidate wills and codicils. If will fraud is proven, the will or codicil may not be admitted to probate.

Please see our blog on forged wills and probate fraud, where a consultant psychiatrist was jailed for five years for forging an elderly patient’s will.

Common types of will fraud include:

• Will forgery
• Fraudulent calumny
• Will destruction

Will forgery

What is will forgery?

This usually involves:

• Someone tracing or forging a person’s signature on a will;
• Substituting or removing pages of a will to alter its contents;
• Making amendments to a will after it has been signed, without the testator’s knowledge or consent.

What are the warning signs of will forgery?

If the signature on a will does not reflect the testator’s usual signature, this might indicate that the signature has been forged. However, not all changes to a signature are an indication of forgery. Signatures can also be affected by ill health or they may change over time.

Missing page numbers, different fonts, or varying margins in a will or codicil may suggest that someone has substituted or replaced pages.

Someone might also trick a testator into signing a document, and later add text to it without the testator’s knowledge or approval.

What is fraudulent calumny?

Fraudulent calumny involves a beneficiary making false representations to a testator (person making a will) about the character or conduct of another potential beneficiary, in order to persuade the testator to change their will.

For example, A and B are beneficences of C’s will. Person A lies to C that person B has stolen from them and person C then excludes person B from their will as a result.

This type of fraud is often referred to as a “poisoning of the mind” (see also testamentary capacity).

Will destruction

If someone deliberately destroys a will or codicil, to ensure that a testator died intestate (without a will) or to allow an earlier will or codicil to be admitted to probate, that is fraud.

If there are any unusual circumstances surrounding the preparation or execution (signing) of a will, you may wish to investigate this further. Our specialist team of solicitors can provide advice about fraud involving wills and estates.

Will construction and rectification

What does will construction deal with?

If there is an error or defect in a will (or codicil), preparing a new will or codicil can usually remedy the issue.

What is will rectification?

A ‘rectification claim’ can be brought if a will which fails to carry out a testator’s intentions due to either:

• A clerical error; or
• A failure to understand the testator’s instructions.

In Marley v Rawlings [2014], a husband and wife, Mr. and Mrs. Rawlings, created mirror wills (wills with identical terms), which were then stored. However, the solicitor who prepared the wills made an error, leading to Mr. Rawlings mistakenly signing his wife’s will and vice versa.

When Mrs. Rawlings passed away, the error remained unnoticed. After Mr. Rawlings died, his two sons contested the will because it left the estate to a third party, Mr. Marley.

If the will had been invalid due to Mr. Rawlings not signing it, his sons would have inherited the estate under the Intestacy Rules instead of Mr. Marley. The Supreme Court ruled that the signing of the will was part of the usual will preparation process, classifying it as a ‘clerical error’ that the court could correct.

Courts do not guarantee rectification of every error in a will or codicil, as each case is handled based on its own merits. In some situations, other remedies may be necessary or available (see poorly drafted wills and negligence).

Our specialist will dispute solicitors can advise you about errors in wills or problems with the drafting of the will. Contact us to arrange a telephone consultation.

Poorly drafted wills and will negligence

A will is an important document that outlines a person’s final wishes and how their assets should be distributed after death. When someone pays to have a will prepared, they should expect the document to be effective and carry out their wishes as intended.

However, because anyone can prepare a will in England & Wales, will services can vary greatly. Poorly or negligently drafted wills can cause a number of problems for executors and beneficiaries of estates.

What problems can occur with poorly or negligently drafted wills?

Common problems with poorly or negligently drafted wills include the following actions by the person who prepared the will:

When does will negligence occur?

Not every problem with the drafting of a will amounts to negligence and some will drafting problems can be relatively straightforward to resolve.

However, there are cases where negligent will drafting causes a financial loss to beneficiaries or an estate. Solicitors and other professionals will usually have professional indemnity insurance. This means that beneficiaries, potential beneficiaries or an estate might be able to make a claim for compensation.

Professional negligence claims must usually be brought within six years from the date of the negligence, but this time frame can vary depending on the circumstances. If you’re concerned about a negligently or poorly drafted will, seek specialist legal advice promptly to determine the deadline for filing a claim.

We can advise you on your options and the actions available. Contact us now to arrange a telephone consultation about contesting a will.