There are a range of reasons why you may consider contesting a Will or challenging an estate. On this page I discuss some of the most common reasons and explain some of the factors that influence whether a claim is possible.
It is important to appreciate that taking advice early on maximises your likelihood of a successful claim. Steps can be taken to prevent the Deceased’s estate from being distributed whilst your claim is dealt with. For example, before a grant of probate is issued you can enter a “caveat” to stop the grant from being issued; if a grant has already been obtained, you may seek court undertakings or an injunction to pause the distribution of assets until your claim is resolved.
That is not to say your claim will definitely fail if the estate has been distributed – some types of claim can still be made even after distribution – but others have strict time limits (for instance, claims under the Inheritance Act 1975 or to rectify a Will generally must be issued within six months of the grant of probate). Executors (personal representatives) are often advised to wait at least six months after probate before distributing the estate, to allow for any claims. Further, it is more difficult to recover money from beneficiaries once assets have been distributed.
It is also important to appreciate that many Will challenges do not go to court. Court action is expensive, time-consuming, stressful and risky. An experienced solicitor will always try to reach a settlement on your behalf without the need for litigation – for example, through negotiation or mediation.
Lack of reasonable financial provision
One of the most common reasons for contesting a Will is that the Deceased did not make reasonable financial provision for somebody who expected to be provided for (often a close family member or dependent). The law for this type of claim is contained in the Inheritance (Provision for Family and Dependants) Act 1975, which sets out a finite list of people who are entitled to bring a claim (although even if you qualify, there is no guarantee of success). The following categories of people may apply under the 1975 Act:
- The spouse or civil partner of the Deceased.
- A former spouse or civil partner of the Deceased (as long as they have not remarried or entered a new civil partnership).
- A child of the Deceased (this includes adult children).
- A person treated by the Deceased as a “child of the family” (for example, a step-child or someone the Deceased raised as their own).
- Any person who was financially maintained by the Deceased (such as someone the Deceased was supporting financially).
- A cohabitee – someone who lived with the Deceased as a partner (as husband/wife or as civil partners) for at least the two years immediately before death.
If a spouse or civil partner makes a claim and is successful, the amount awarded by the court is usually akin to what they would have achieved in a divorce settlement (in other words, their provision is not strictly limited to “maintenance”). If anyone other than a spouse or civil partner is successful in bringing a claim, the amount they receive is generally capped at what would be reasonable for their ‘maintenance’ (essential living needs), rather than a share of the estate.
You can find out more about making a claim for lack of reasonable financial provision in my related guide.
Unusual lifetime gifts
Sometimes a Deceased person’s estate is substantially reduced by large lifetime gifts, and this may not come to light until after they die. At that point, relatives or other would-be beneficiaries might question whether a particular gift was valid – for example, was it made at a time when the person lacked capacity, or were they pressured into it?
To make a significant lifetime gift, the person must have sufficient mental capacity. The level of understanding required is proportional to the size and consequence of the gift: if it is a very large or important gift (for instance, giving away the majority of their assets), then the person needs a level of capacity akin to that for making a Will. They must understand the extent of the property they are giving away and the effect of parting with it. They should also keep in mind anyone else who might expect to inherit (although this doesn’t mean they are obliged to leave them anything).
Another issue with unusual gifts is undue influence. If a gift was made to someone in whom the giver placed trust and confidence, and the transaction is one that “calls for an explanation” (for example, an unusually generous or unexpected gift), then there is a legal presumption that the gift was procured by undue influence. In essence, the law shifts the burden to the recipient of the gift to prove that they did not unduly influence the giver.
In summary, if substantial or unusual gifts were made by the Deceased during their lifetime (especially if they significantly depleted the estate), it may be possible to challenge those gifts after death on grounds such as lack of capacity or undue influence.
Lifetime promises
It may be that the Deceased promised something to someone during their lifetime, and that person relied on that promise to their detriment. An example would be parents assuring their child, “Work on the family farm for little or no pay, and you will inherit the farm someday.” If the child works for many years based on that promise but the parents then do not leave the farm to them in the Will, the child may have a claim. This kind of situation is known as ‘proprietary estoppel’. Essentially, the law can hold someone to their promise if another person reasonably relied on that promise and suffered a detriment as a result.
If a court finds that all the elements of proprietary estoppel are satisfied, it has flexibility in how to satisfy the equity (i.e. how to fulfil the promise or compensate the claimant). In some cases, the court might award the promised asset (such as transferring the farm to the child); in other cases, the court might order a financial payment or alternative relief that reflects the value of the promise, to avoid an outcome that is out of proportion with the detriment suffered. The goal is to reach a fair result that protects the person who relied on the promise.
Money owed
If the Deceased owed money to someone, that person (a creditor) may decide to claim against the estate for the debt. Usually, legitimate debts of the Deceased are paid by the personal representatives during the estate administration as a matter of course. However, if there is a dispute about whether the money was owed, or if the debt was not documented, legal assistance may be needed to resolve it. Keep in mind that there are also time limits on debt claims (for example, many debts become unenforceable if too much time has passed – often six years for simple contracts), so any claim for money owed should be raised without delay.
Authenticity of the Will
There are a number of reasons why a Will might be found to be invalid, which would give rise to a challenge against its authenticity. Some of the common grounds include:
- Improper execution – The Will was not executed (signed and witnessed) correctly. (For example, the Will might not have been signed by the person making it, or it was not witnessed by two people present at the same time, as required by law. Note: A temporary allowance for witnessing wills via video link existed during 2020–2022 due to COVID-19, but this expired in January 2024, so wills must now be witnessed in person again.)
- Lack of testamentary capacity – The person making the Will did not have the mental capacity to understand what they were doing at the time.
- Undue influence – The person making the Will was coerced or pressured by someone else, so the Will does not reflect their true free wishes.
- Lack of knowledge and approval – The person did not know of or approve the contents of the Will. (In other words, they may have signed it without realising or agreeing to what it said.)
- Fraud or forgery – The Will is fraudulent or has been forged (for example, someone faked the signature, or tricked the person into signing).
- Forfeiture – The law prevents someone who has caused the Deceased’s death from benefiting under the Will (for example, a murderer cannot inherit from their victim’s estate, under the forfeiture rule).
This list is not exhaustive. A specialist lawyer can advise on whether you have grounds to pursue one of these types of claim, or any other challenge to a Will.
Other types of action
There are various other types of action that might be taken when a probate dispute arises. When someone dies, it is usually necessary for their personal representatives to apply for a grant (a grant of probate if there is a Will, or letters of administration if there isn’t) in order to collect in the assets and administer the estate. The majority of these applications are straightforward and are processed in accordance with the Non-Contentious Probate Rules 1987. Provided that there is no challenge to the estate, a grant will be issued to the appropriate person (such as the executor named in the Will, or the next of kin under intestacy), and the Deceased’s personal representatives can then get on with their duties.
However, sometimes an interested party may wish to challenge the grant of probate or prevent it from being issued. As mentioned above, one way to do this before the grant is issued is by entering a ‘caveat’, which temporarily stops the issue of a grant while the dispute is investigated (a caveat lasts for six months at a time and can be renewed).
Alternatively, a dispute might arise over who is entitled to the grant or to administer the estate. This is sometimes referred to as an “interest action”. Such an action may involve a disagreement about someone’s status or interest in the estate. For example, a person might claim they are entitled to be the administrator of the estate (or entitled to inherit) because they say they are a child of the Deceased – but that claim might be disputed (for instance, if their relationship to the Deceased is called into question). In a situation like that, the court – using its powers under section 116 of the Senior Courts Act 1981 – can “pass over” the person who would normally be entitled to the grant and appoint someone else instead, if it is necessary or expedient to do so.
Another type of action is revocation of the grant. If a grant of probate (or letters of administration) has already been issued, but someone believes it was issued incorrectly – for example, because a later Will has come to light, or because the person who obtained the grant was not actually entitled to it – then an application can be made to revoke (cancel) the grant. The result of a successful challenge of this nature is that the grant is overturned, and (if appropriate) a new grant can then be obtained based on the valid Will or correct circumstances.
Find out more about funding your claim.
Jennifer Wiss-Carline is a practising Solicitor regulated by the SRA and a Chartered Legal Executive (FCILEx), bringing over two decades of experience to her practice. Specialising primarily in Private Client law, Jennifer expertly handles matters including Wills, Inheritance Tax and Estate planning, Lasting Powers of Attorney for individuals and businesses, Deputyship Orders and more.
