Who can challenge a will?

Testamentary freedom does not exist in every country, and whether it truly exists in England & Wales is open to debate but there are risks when excluding someone from your will and as part of the instruction taking process, we will ask you if you are excluding someone who could potentially challenge the will, should they expect to receive inheritance from you. Typically, the below are possible challenges to a will:

• A claim that the will is invalid because the testator/testatrix (the person making the will) lacked mental capacity when the will was signed;
• A claim that someone exerted undue influence on the testator/testatrix (such as forcing/pressuring someone to make a will or include certain provisions that they wouldn’t usually include); or
• A claim that they are someone who has been excluded by the testator/testatrix but believe they should have received a reasonable provision from their estate.

Challenges under options 1 & 2 are rare in practice as we assess mental capacity at each stage of our instruction, as well as try and judge whether clients are under any undue influence. Challenging under option 3 would be under the Inheritance (Provision for Dependants) Act 1975. The following people are automatically allowed to challenge a will under the legislation: 

• A spouse or civil partner;
• A former spouse or civil partner, who has not remarried;
• A cohabitee who has been living with you for at least 2 years before your death;
• A child, or step-child (including adult children);
• Anyone you’ve treated as your child but not necessarily adopted or fostered; and
• Someone you’ve maintained.

The above are automatically allowed to bring a claim, without the court’s permission, but this does not mean they will automatically be successful in overturning a will. Generally, claims must be made within 6 months of the Grant of Probate being issued, so anyone challenging a will faces a strict time limit for doing so and as part of their claim they must show they have not been given ‘reasonable financial provision’ which will differ on a case-by-case basis. 

When clients indicate they are excluding someone from their will, we will ask for reasons why. Sometimes, we also advise clients to consider leaving a nominal sum of money to them instead, as it’s more difficult for someone to challenge on the basis they are unhappy with the amount they have received, compared to those who have received nothing at all. 

The reasons for excluding are then included in a statement which is drafted and signed at the same time as the will. Should the excluded person challenge the will, then the statement will be submitted as evidence to the court, explaining why they have been excluded. The statement does not guarantee the claim will fail, but it shows clients have considered the matter carefully when drafting the will and have very clear reasons for excluding someone. 

If you have any questions regarding this article, or wish to review your will, please do not hesitate to contact us by clicking here.