A will can be challenged in certain specific circumstances. For policy reasons (because it is important that certainty is promoted on how an individual’s estate will be distributed) it is not easy to challenge the validity of a will.
If a will is successfully challenged, it is as though it never existed. Therefore, if there was no previous will, the Rules of Intestacy will apply (see our flowchart here). If there was a previous valid will, that will becomes effective.
The grounds upon which a will can be challenged are as follows –
Lack of Capacity
The individual making the will must, at the time of making their will, have the mental capacity to do so. The case of Banks v Goodfellow, which recently enjoyed its 150th anniversary having been decided in 1870, remains the leading piece of case law in respect of the test to be applied when considering if an individual had capacity. The testator (person making the will) must:
- Understand that they are making a will;
- Understand what property they have and are giving away in their will;
- Be able to appreciate who might expect to receive something from their estate and why;
- Not be suffering from any insane delusion.
Recent case law has developed the Court’s interpretation of the above and assessing capacity is complicated. For example, an individual might have capacity one day and not the next, an individual might have capacity to decide on what medical treatment they received but not the capacity to make a will.
The test for testamentary capacity (i.e. capacity to make a will) is different to the test of capacity pursuant to the Mental Capacity Act 2005.
It is presumed that the individual making the will had capacity. It is for anyone challenging the will to establish, on the balance probabilities, that there was a lack of capacity at the time the will was made.
Not Properly Executed
Section 9 of the Wills Act 1837 provides a will is not valid unless it is in writing and signed by the individual making the will in the presence of two or more witnesses who are both present when the signature is made and who both sign the will, to confirm this, in the presence of the testator. Practically speaking, such challenges involve determining who has witnessed the signing of the will and, if, in fact, they actually saw the testator signing the will and other factors, depending on the testator’s circumstances.
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Want of Knowledge and Approval
For obvious reasons, it must be established that the individual making the will (the testator) knew what the contents of their will were and approved it. This may be established, where solicitors are instructed, by scrutiny of the solicitors’ file of papers or, if not, the knowledge of friends and family members.
Undue Influence
The burden of proof (responsibility for proving) is on the individual making the allegation of undue influence. The allegations as to exactly how, when and why the undue influence occurred must be very specific. Vague allegations will not be sufficient.
The nature of the influence has been described by the Courts as having the effect of causing the testator’s (person making the will) own discretion to be overborne.
Undue influence most often occurs behind closed doors and so it is not often considered by the courts.  An example of a successful undue influence claim is the case of Chin (Deceased), Re [2019] EWHC 523 (Ch) (8 March 2019). Following a stroke the testator was worn down by pressure from her husband and/or son to leave her estate to her son, rather than her five daughters, as she had done in her previous will. The Court found that undue influence had occurred, and this had the effect of the last will being declared invalid and the previous will (which left the estate to all children equally) being effective.
Fraud
An allegation of fraud in respect of the preparation and/or execution of the will is very serious. Any allegations of fraud must be very specific. An example of fraud is where a will is not signed by the testator but a third-party (who have knowledge of this) assert the will is valid. A claim of fraud was also established where a false allegation was made against someone which resulted in them being disinherited.
Revocation
A will is revoked (deemed invalid) if the testator (person making the will):
- Gets married or has a civil partnership;
- Gets divorced or their civil partnership is dissolved
- Destroys their will.
Forfeiture
This one is (thankfully!) uncommon. A beneficiary cannot inherit if they have unlawfully killed the testator (person making the will). This can be modified by the Court, save for where the beneficiary has been convicted of murder. The Courts have held that a husband who smothered his wife, rather than her going to a care home, could inherit.
Interest
If a beneficiary of a will is a witness to the will’s execution, any gifts to that beneficiary will fail pursuant to section 15 of the Wills Act 1837. The rest of the will remains valid.
