5 Common Grounds for a Will Dispute in England & Wales

Discovering you have been omitted from a will, or harbouring suspicions regarding its validity, can be a deeply unsettling experience. At Van Eaton Solicitors, we understand the sensitive nature of such situations and the importance of clarity when navigating the complexities of estate administration. This article outlines the five most common legal grounds upon which a will can be challenged in England and Wales. If you find yourself concerned about the legitimacy or fairness of a will, seeking expert legal counsel is paramount to understanding your rights and available options.

1. Lack of Testamentary Capacity

Testamentary capacity refers to the legal requirement that the person making the will (the testator) must have possessed the requisite mental understanding at the time of its creation. This means they must have comprehended the nature of the act they were undertaking and its effects, understood the extent of their property, and been aware of the individuals who might reasonably be expected to benefit from their estate.

Circumstances that may raise concerns about testamentary capacity include advanced age, the presence of illnesses affecting mental clarity (such as dementia or Alzheimer’s disease), or the influence of medication at the time the will was executed. The established legal test for testamentary capacity, derived from the case of Banks v Goodfellow (1870), provides a framework for assessing this crucial element. If the testator did not possess the necessary capacity, the will may be deemed invalid.

2. Undue Influence

Undue influence arises when an individual exerts pressure or coercion upon the testator, effectively overriding their free will and compelling them to make decisions that do not reflect their genuine intentions. Proving undue influence can be a significant challenge, as such actions often occur privately.

Examples of situations that may suggest undue influence include a sudden and unexplained alteration to a will that disproportionately benefits a caregiver or someone in a position of power over the testator, or instances where the testator was isolated from family and friends prior to making the will. It is important to distinguish between legitimate persuasion and improper coercion; the latter involves a level of pressure that deprives the testator of their independent judgment.

3. Improper Execution

For a will to be legally valid in England and Wales, it must adhere to specific formalities outlined in the Wills Act 1837. These requirements include:

• The will must be in writing.
• It must be signed by the testator (or by someone acting on their behalf and under their direction, in their presence).
• The testator’s signature must be witnessed by two independent adults who are both present at the same time as the testator signs.
• Each witness must then sign the will in the presence of the testator.

Common errors in execution that can render a will invalid include having only one witness, a beneficiary (or their spouse/civil partner) acting as a witness, or the testator failing to sign the document correctly. Strict adherence to these rules is essential for the will’s validity.

4. Fraud or Forgery

Allegations of fraud or forgery are serious and involve deliberate deception concerning the creation or content of a will. Fraudulent activity might involve misleading the testator into making a will or including specific provisions based on false representations. Forgery, on the other hand, entails the creation of a completely fabricated will or the unauthorised alteration of an existing one.

These claims require compelling evidence to substantiate the allegations. Examples could include someone falsely claiming to be a relative to gain inheritance or the discovery of a signature that does not match the testator’s.

5. Claims Under the Inheritance (Provision for Family and Dependants) Act 1975

Even if a will is deemed validly executed and the testator possessed the requisite capacity and was not unduly influenced, it can still be challenged under the Inheritance (Provision for Family and Dependants) Act 1975. This Act allows certain categories of individuals who were financially dependent on the deceased to apply to the court if they believe the will does not make reasonable financial provision for them.

Those eligible to make a claim include:

• The spouse or civil partner of the deceased.
• A former spouse or civil partner who has not remarried or entered into a new civil partnership.  
• Children of the deceased (including adult children).
• Stepchildren or individuals are treated as children of the family.
• Anyone who was being maintained by the deceased immediately before their death.
• A cohabitant (living as husband and wife or civil partners) for at least two years prior to the death.

When considering such claims, the court will take into account various factors, including the financial needs and resources of the applicant and other beneficiaries, the size and nature of the estate, and the relationship between the applicant and the deceased.