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, a person the deceased treated as a child of the family (such as a stepchild), 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 by applying in the last month before it expires; further extensions can be made in the same way. 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. Northern Ireland has its own equivalent, the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979, which also allows claims by a cohabitant of at least two years.

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.

Frequently Asked Questions

What are the grounds for challenging a will's validity in England and Wales?

A will can be challenged as invalid for lack of testamentary capacity, improper execution under the Wills Act 1837, lack of knowledge and approval, undue influence or coercion, or fraud and forgery. Any of these, if proven, can mean the will never took legal effect.

How long do I have to contest a will?

It depends on the ground. A claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 usually has to be brought within six months of the grant of probate. Challenges to a will's validity, such as lack of capacity or undue influence, have no fixed statutory deadline, but delay makes a claim harder and can allow the estate to be distributed in the meantime, so acting quickly matters either way.

Who can claim under the Inheritance (Provision for Family and Dependants) Act 1975?

A spouse or civil partner, a former spouse or civil partner who has not remarried, a cohabitant who lived with the deceased as a couple for at least two years, a child of the deceased, a person the deceased treated as a child of the family (such as a stepchild), and anyone the deceased was maintaining financially can apply.

What is a caveat and how does it work?

A caveat is entered at the Probate Registry to stop a grant of probate or letters of administration being issued while a dispute is looked into. It lasts six months initially and can be extended for a further six months by applying in the last month before it expires, and extended again in the same way. It is a temporary hold rather than a ruling on the underlying dispute.

What happens if a will is found to be invalid?

If a will is successfully challenged and found invalid, it is treated as if it had never been made. An earlier valid will, if one exists, takes over instead. If there is no earlier valid will, the estate is distributed under the intestacy rules.

Can you contest a will in Scotland the same way?

Not in the same way. Scotland gives a spouse or civil partner and children automatic 'legal rights' to a protected share of the moveable estate that a will cannot remove, so that forced-heirship protection already exists regardless of the will's terms. Validity challenges such as lack of capacity or undue influence can still arise, but the Inheritance (Provision for Family and Dependants) Act 1975 is England and Wales legislation and does not apply in Scotland.

Does undue influence have to be proven, or just suspected?

It has to be proven. Suspicion, or an unexpected change in someone's will, is not enough on its own. The person alleging undue influence generally has to show that pressure or coercion actually overpowered the testator's own free judgement, which can be a difficult and fact-heavy case to make.

Do I need a solicitor to contest a will?

There is no legal requirement to use a solicitor, but contesting a will is a specialist and often complex area with strict time limits, so most people bringing or defending a claim take advice from a solicitor experienced in contentious probate.