Contesting a will

If you believe a will does not reflect what the person who made it really wanted, or that it was not made properly, you may be able to challenge it. A successful challenge usually means an earlier will, or the intestacy rules if there is no earlier will, decides who inherits.

Grounds for challenging a will

In England and Wales a will can be challenged on several grounds. More than one may apply.

• Lack of testamentary capacity. The person making the will (the testator) must have understood what a will is and its effect, had a broad idea of what they owned, understood who might expect to benefit, and not been affected by a disorder of the mind that distorted their judgement. The test comes from Banks v Goodfellow (1870). Dementia, serious illness or medication can all be relevant, and medical records are often key evidence.
• Lack of knowledge and approval. The testator must have known and approved what the will said. Questions arise where the testator was vulnerable, could not read the will, or where someone who benefits was involved in preparing it.
• Undue influence. This means coercion: pressure that overpowered the testator's own wishes. Persuasion or influence alone is not enough, and undue influence can be difficult to prove, so the evidence needs careful assessment at the outset.
• Forgery and fraud. Where the signature or the document itself is not genuine, or the testator was deliberately misled (for example by false statements about a family member, known as "fraudulent calumny").
• The will was not properly signed and witnessed. Under section 9 of the Wills Act 1837 a will must be in writing and signed by the testator (or by someone else at their direction and in their presence), with the signature made or acknowledged in the presence of two witnesses present at the same time, who each then sign.

Other ways a will can be put right or interpreted

• Rectification. The court can correct a will that fails to carry out the testator's intentions because of a clerical error or because the person drafting it misunderstood the instructions. A claim should normally be brought within six months of the grant of probate.
• Construction. Where the wording of a will is unclear, the court can decide what it means.
• A claim under the Inheritance Act. Even if a will is valid, some family members and dependants can claim reasonable financial provision. See Inheritance Act claims.

First steps

1. Get advice early. Evidence such as medical records and the will-writer's file is easier to obtain promptly, and the estate may otherwise be distributed.
2. Consider a caveat. A caveat entered at the Probate Registry stops a grant of probate being issued for six months (it can be extended). It buys time to investigate, but it should not be used without good reason.
3. Request the will-writer's file. A "Larke v Nugus" request asks the solicitor or will-writer who prepared the will to explain how it was made.
4. Gather medical and other evidence about the testator's health and circumstances when the will was made.
5. Explore settlement. Many will disputes are resolved by negotiation or mediation without a trial.

Costs

Will disputes can be expensive if they go to trial, and the losing party is often ordered to pay the other side's costs. In some cases, the court may order costs to be paid from the estate. Read more on costs and funding.

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Frequently asked questions