Could I challenge a Will?

Challenge a Will

Every month, more than 13,500 people search in Google for terms relating to challenging Wills. The number of challenges made has grown by 700% over the past five years, according to the Independent. This is due to a number of factors which include:

  • Only a third of people have a Will – and without a Will, the rules of intestacy will apply which may leave out key dependants.
  • Family structures are becoming increasingly complex with second and third marriages, step children etc.
  • People are living longer – consequently more people are losing mental capacity.
  • The growth in the property market means estates are bigger (and worth fighting for!)
  • A significant number of those who make a Will choose a ‘DIY’ option. These may not be properly executed or may contain ambigious language. With DIY Wills there will also be no notes available as to the person’s mental capacity. See ‘When DIY Wills go wrong‘.

The grounds to challenge a Will

There is a general principle  that a testator/testatrix (someone making a Will) can leave their estate to whoever they like. If they do not make a Will, their estate will pass according to the rules of intestacy.

However, aside from these general principles, there may be grounds to claim against the estate in a wide range of circumstances. These include, for example:

The above examples are not exhaustive but represent the most common reasons why someone might be able to challenge a Will. Most claims are based around an application for reasonable provision under the Inheritance Act or questions over the validity of the Will. You can find out more about contesting a Will here.

Example claims:

  • Ilott v Mitson: A mother left her entire £486,000 estate to charity, disinheriting her only daughter who was estranged. The Court awarded £50,000 to the daughter.
  • Martin v Williams [2017]: A married couple separated and the husband then purchased a property with a new partner, cohabiting for a number of years. According to his Will, his wife was entitled to his entire residuary estate. His partner made a claim for reasonable financial provision under the Inheritance Act and was granted a life interest in the property.
  • Ashkettle v Gwinnett [2013]: A Will was challenged on the basis that (amongst other things) the testatrix did not have testamentary capacity. Although medical evidence showed she had Alzheimer’s, the experts agreed she would have had the capacity to understand the nature and consequences of the act of making a Will. However, they did not agree that she could appreciate the extent of her estate and appreciate the moral claims of those who might reasonably expect to benefit. In this case the Will had been drawn up by a solicitor but he was unable to show that he had formed a proper view on capacity in the absence of his file notes.

How to fund your claim

One of the biggest concerns people have when considering whether to challenge a Will is how to fund their claim. There are a range of funding options which include:

  • No win no fee agreements
  • Fixed fees – suitable for initial investigation work
  • Legal expenses insurance
  • After the event insurance
  • Privately funded – pay by instalments
  • Litigation loans

If you believe you have a claim, we can work with you to find the best funding option.

Steps to take

There are strict time limits for some types of claim so it is essential to get legal advice early on. The first step is to let us know why you think you may have a claim. We will then be able to advise you whether it is worth investigating the matter further. Complete your details below without obligation:

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