Contentious Probate – Challenging a Will and more

Challenging, or indeed defending a Will, is a serious matter that can often leave families scarred. But for those who feel they have not been adequately provided for, there are several options for action, as Howard Lee at Mogers Drewett explains.

Challenging a will or making a claim against the estate of the deceased is a complex, and often emotionally draining undertaking. But for those who feel they have not been inadequately provided for, there are several courses of action that can be pursued.

It is important to remember that a person is generally free to make their Will in whatever way they wish. However, even if the Will is valid, this can result in a claim being made under the Inheritance (Provision for Family and Dependents) Act 1975 (or if there is no Will to challenge the distribution under the Intestacy Rules) if the applicant feels they have not been left reasonable financial provision.

The Will document itself can be challenged if it can be proved to have been made by forgery, fraud, or lack of due execution. This can arise particularly in DIY Wills that have not been made with professional advice.

A challenge can also me made based on the grounds that relate to the testator’s mental capacity or knowledge of their Will. For example, alleging undue influence by a third party against the testator. This is a common allegation but difficult to prove. There needs to be clear evidence of actual coercion. A cynical ingratiation by a family member or friend in anticipation of a greater gain in the Will, will not be enough however, distasteful that conduct might be.

Alleging that the testator lacked the mental capacity to make a Will seeks to prove that they did not satisfy the test for mental capacity that is recognised by the courts. The applicant might have grounds to allege the Will was not made with the testator’s knowledge and approval. This challenge can succeed even if the court determines that the testator did have mental capacity. There can often be clear signs of concern when the Will is made, so a Will maker must take care to make sure a Will is valid.

There is another alternative route to make a claim before or after death, using the equitable remedy of proprietary estoppel. When someone makes a promise to another that the second person relies upon and acts to their detriment, the court can, in certain circumstances uphold that promise and make a proportionate award to do justice.

Claims can be complex, expensive and extremely emotional, particularly as they often involve close family members. Any claim will require a detailed analysis of the facts and an understanding of the legal position by a specialist adviser. Suspicion and dissatisfaction will not be enough, and allegations are often made that cannot be proved. Therefore it is important that anyone who feels they have a claim, or has to defend a claim, should seek specialist advice at the earliest opportunity.

For further information or advice on this subject please call 01749 342 323


Mogers Drewett

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