Contesting a Will in England and Wales: Grounds and Limits

A will can be challenged in two different ways in England and Wales: by attacking its validity, or by claiming reasonable financial provision even where the will is valid. Both routes carry strict time limits, and Scotland's protections work very differently.

Two Ways to Challenge a Will

There are two distinct routes for challenging a will in England and Wales, and they work in very different ways. The first disputes the will's validity altogether, arguing it should never have taken legal effect, for reasons such as the testator lacking capacity, improper execution, or undue influence. If that challenge succeeds, the will is treated as if it never existed: an earlier valid will takes over, or, if there is no earlier will, the estate passes under the intestacy rules. The second route accepts that the will is valid but argues it does not make reasonable financial provision for the person bringing the claim, under the Inheritance (Provision for Family and Dependants) Act 1975. The two can occasionally run together, but they rest on different legal tests, different eligible claimants, and different time limits, so it matters which one actually applies to the facts.

Challenging the Will's Validity

A will can be challenged as invalid on several established grounds, and more than one can apply at once. If the challenge succeeds, the whole will, or the affected part of it, fails, and an earlier valid will, or the intestacy rules, governs the estate instead.

• Lack of testamentary capacity. The testator must have understood the nature of making a will, the extent of the property involved, and the claims of people who might expect to benefit, the long-established test from Banks v Goodfellow (1870).
• Lack of valid execution. The Wills Act 1837 requires a will to be in writing, signed by the testator, and witnessed by two witnesses present at the same time; missing any of these formalities can be fatal to validity.
• Lack of knowledge and approval. The testator must have actually known and approved the contents of the will, an issue that can arise where someone else prepared it or where suspicious circumstances surround its signing.
• Undue influence or coercion. The will must reflect the testator's own free will, not pressure or coercion from another person that overpowered their judgement.
• Fraud or forgery. The will, or a signature or provision within it, was forged or was procured by deliberately misleading the testator about what they were signing.

Claiming Reasonable Financial Provision Under the 1975 Act

Even where a will is entirely valid, certain people can ask the court to change how the estate is distributed if it does not make reasonable financial provision for them, under the Inheritance (Provision for Family and Dependants) Act 1975. Eligible applicants include a spouse or civil partner, a former spouse or civil partner who has not remarried or formed a new civil partnership, a cohabitant who lived with the deceased as a couple for at least two years immediately before death, a child of the deceased, and anyone else the deceased was maintaining financially. The court weighs factors including the size of the estate, the applicant's financial needs and resources, and the deceased's reasons for the choices made in the will. A claim must usually be made within six months of the grant of probate or letters of administration, though the court has limited discretion to allow a late claim in some circumstances.

Entering a Caveat to Pause a Grant

Anyone who needs time to investigate a possible dispute, whether over validity or otherwise, can enter a caveat at the Probate Registry. A caveat stops a grant of probate or letters of administration being issued while it is in force, giving the person who entered it breathing space to take advice or gather evidence before a grant is issued and assets start being distributed. A caveat initially lasts six months and can be extended for a further six months if needed. It is a holding measure, not a ruling on the underlying dispute, and entering one without good reason can lead to legal costs being awarded against the person who entered it. Anyone considering a caveat, or facing one entered against their own application, should get advice quickly given the short timescales involved.

Scotland: A Different Starting Point

Scotland's approach to challenging a will is structurally different, because Scots law does not start from the same testamentary freedom that applies in England and Wales. Instead, "legal rights" give a surviving spouse or civil partner and children an automatic, protected share of the deceased's moveable estate (broadly, assets other than land and buildings), a form of forced heirship that a will cannot remove. This means a Scottish will rarely has to be contested in the same way to secure a fair share for a spouse or child, because the entitlement already exists regardless of what the will says. See our guide to intestacy in Scotland for how legal rights and prior rights work together. Validity challenges such as lack of capacity, undue influence, or forgery can still arise in Scotland, but the Inheritance (Provision for Family and Dependants) Act 1975 is England and Wales legislation and does not apply there.

For the wider picture of dealing with an estate, see our guides to making a will, intestacy rules, and deed of variation, or return to the UK wills and probate hub and the wider guide to United Kingdom law.

This article is general information about contesting a will in England and Wales, not legal advice, and time limits for these claims are strict. If you are thinking of challenging a will, or defending a will against a challenge, get advice from a solicitor experienced in contentious probate as soon as possible.