Defending a Will Challenge
This article explores the key grounds for challenging a Will, the evidence that may be needed to bring or defend a claim, and the legal options available to executors and beneficiaries. It also explains how early specialist advice can help protect the estate, reduce risk and resolve disputes as efficiently and proportionately as possible.
Being told that someone intends to challenge a Will can be worrying, particularly if you are an executor or beneficiary.
A Will challenge can delay estate administration, increase costs and create family tension. However, disagreement with a Will does not mean that a challenge will succeed.
At DJF Solicitors, our contentious probate team acts for executors and beneficiaries defending Will challenges in Bristol, London and throughout England.
Why might someone challenge a Will?
A Will cannot usually be overturned simply because someone considers it unfair. There must generally be a recognised legal basis, such as:
Lack of testamentary capacity
The person making the Will must have understood what they were doing and the effect of the Will. Concerns may arise where the deceased had dementia, Alzheimer's disease or another condition affecting their cognitive abilities.
A diagnosis alone does not prove incapacity. Medical records, the solicitor's file, attendance notes and witness evidence may all be relevant.
Undue influence
A challenge may allege that the deceased was pressured or coerced into making a Will that did not reflect their genuine wishes.
A close relationship with a beneficiary or a substantial inheritance does not, by itself, prove undue influence. The circumstances surrounding the Will and supporting evidence must be examined.
Lack of knowledge and approval
The deceased must have understood and approved the contents of the Will. This may be questioned where the Will contains unusual provisions or represents a significant, unexplained change from previous Wills.
Improper execution
Wills must meet specific signing and witnessing requirements. If these formalities were not followed, the Will may be challenged.
Fraud or forgery
A challenge may involve allegations that the Will, signature or another document was forged or fraudulently created. Expert evidence may be required.
What if the claim is under the Inheritance Act?
Not every claim against an estate challenges the validity of the Will.
Someone may accept that the Willis valid but argue that it failed to make reasonable financial provision for them under the Inheritance (Provision for Family and Dependants) Act 1975.
Such a claim can affect what beneficiaries receive without invalidating the Will.
What should an executor do?
An executor must administer the estate properly and remain neutral between competing beneficiaries.
If you become aware of a dispute, obtain legal advice before distributing assets. Distribution while a claim remains unresolved can create further difficulties and potentially expose an executor to personal risk.
What evidence may be relevant?
Depending on the allegations, evidence may include:
- The solicitor's Will preparation file
- Previous Wills
- Medical and care records
- Correspondence, emails and messages
- Evidence from witnesses
- Financial records
- Information about the deceased's relationships and intentions
Identifying and preserving relevant evidence early can be important.
Does a Will challenge have to go to court?
No. Many disputes are resolved through correspondence, negotiation or mediation.
Mediation can allow the parties to explore settlement without a final court hearing. However, a claim should not necessarily be settled simply to avoid litigation. If the Will is valid and the challenge is unsupported, executors and beneficiaries may have good reason to defend it.
Our role is to assess the claim,advise on the risks and recommend a proportionate strategy.
How much does it cost to defend a Will?
Costs depend on the complexity of the dispute, the evidence required and whether court proceedings are necessary.
We offer a free 15-minute initial consultation to discuss the dispute and potential next steps.
In appropriate cases, we may consider a Conditional Fee Agreement (CFA). A CFA is sometimes called a“no win, no fee” agreement, but clients may still be responsible for disbursements, such as court fees, barristers' fees, expert fees and other third-party expenses.
Read our guide: What is a CFA?
Contentious probate solicitors
DJF Solicitors has offices across England, including London and Bristol. Our contentious probate solicitors advise on
- Defending and challenging Wills
- Inheritance Act claims
- Executor and trustee disputes
- Beneficiary disputes
- Lifetime gifts
- Proprietary estoppel claims
- Capacity and undue influence disputes
- Fraud and forgery allegations
- Complex estates
Whether you are an executor facing a challenge or a beneficiary concerned about your inheritance, early advice can help protect your position.
Speak to our contentious probate team
If someone is challenging a Will,we offer a free 15-minute initial consultation to assess your case.
Where appropriate, we can also discuss available funding options.
Make an enquiry here and a member of our contentious probate team will contact you.
Call us today on 0203 504 9138, or email us at info@djfsolicitors.co.uk to schedule your free initial telephone consultation.
Article by Nicole Nedungadi, Private Client Solicitor at DJF Solicitors
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