How Difficult is it to Contest a Will?

Contesting a will in England and Wales is a process that many people find themselves considering in the wake of a loved one’s passing. Although it is a common assumption that contesting a will is an impossibly complicated task, the reality often lies somewhere in between the perception and the legal intricacies involved. This blog aims to guide you through the key elements that affect the contestation of a will, the different grounds for contesting a will, the process involved and the potential challenges that individuals may face.

Understanding the Grounds for Contesting a Will

Before embarking on the journey to contest a will, it is essential to understand the legitimate grounds upon which a challenge can be made. There are several key factors that can justify contesting a will, including:

1. Lack of Testamentary Capacity: For a will to be valid, the testator (the person who made the will) must have had the mental capacity to understand the implications of making a will, the extent of their estate and the natural beneficiaries of their estate. If there are doubts regarding the mental capacity of the testator at the time of making the will, a challenge may be justified.

2. Improper Execution: According to the Wills Act 1837, a will must be executed by the testator and properly witnessed to be valid. If a will fails to meet these execution requirements, it will simply nor be valid. 

3. Undue Influence: If it can be shown that the testator was coerced or manipulated into making a will in a particular way—perhaps under the influence of a beneficiary—such cases may warrant a challenge based on undue influence.

4. Fraud: If there is evidence that the will was procured by fraud, meaning it was not made by the free will of the testator or that the contents of the will do not reflect their genuine intentions, this can provide grounds for contesting a will.

5. Invalidity Based on Marriage or Divorce: In certain cases, a will made prior to marriage or following divorce may be rendered invalid. This is particularly the case if the will does not account for changes in the testator’s marital status. 

6. Under certain provisions laid down by a 1975 Act of Parliament– as to which see further below.

Navigating the Process

Once grounds for contesting a will have been identified, it is essential to understand the steps involved in the process. Contesting a will typically includes the following stages:

1. Seeking Legal Advice: Navigating the complexities of contesting a will requires a comprehensive understanding of inheritance law. Engaging with us can provide guidance on the viability of the case and the associated costs. This initial consultation is crucial to determining the best course of action.

2. Gathering Evidence: To build a solid case, it is important to gather evidence that supports the grounds for contestation. This may include medical records, witness statements and any relevant documents tied to the will. The more robust the evidence, the stronger the challenge.

3. Filing for a Caveat: If a person wishes to contest a will, they may file a caveat with the Probate Registry. By doing so, they prevent the estate from being administered until the challenge is resolved. This helps to safeguard the claimant’s interests while the case is ongoing.

4. Mediation and Negotiation: In many instances, parties involved may find a resolution through mediation rather than proceeding to court. Mediation can be a more amicable and cost-effective way to resolve disputes, offering a chance for all parties to reach a mutual agreement without the need for a protracted legal battle.

5. Litigation: If mediation fails or is not an option, the case may proceed to court. This stage often involves filing a claim and presenting the argument before a judge. The litigation process can be lengthy and costly, pushing some individuals to reconsider their decision to contest a will.

Challenges in Contesting a Will

Contesting a will in England and Wales is not without its challenges. Individuals should be aware of several potential obstacles:

1. Time Constraints: Failing to act promptly can result in losing the right to challenge the will and/or may mean the estate of the deceased’s estate has already been transferred into the hands of the beneficiaries named under the will.

2. Cost Implications: Contesting a will can become expensive, especially if it progresses to litigation. Legal fees, court costs and any costs associated with gathering evidence can accumulate quickly. These costs often create a barrier for individuals considering a challenge.

3. Emotional Strain: Engaging in a legal dispute over a loved one’s estate can evoke strong emotions and strain relationships with family members. The emotional toll of litigation and the potential for permanent rifts can weigh heavily on individuals contemplating whether to contest a will.

4. Success is Not Guaranteed: Even with a valid case, there is no guarantee of success. The legal thresholds for contesting a will are high, and individuals must present compelling evidence to sway the court in their favor.

Other Options

Whilst a will may be valid, the provisions of the same may be challenged under the The Inheritance (Provision for Family and Dependants) Act 1975, a significant piece of legislation in the UK that provides certain individuals the right to claim a share of a deceased person’s estate if they believe they have not been adequately provided for in the will or under intestacy rules. Here are the main provisions of the Act:

1. Eligible Claimants: The Act allows specific individuals to make a claim, including:

   – Spouses or civil partners.

   – Former spouses or civil partners if they have not remarried.

   – Children, including adopted children.

   – Individuals who were treated as children of the deceased.

   – Dependants who were living in the same household as the deceased and were dependent on them.

2. Basis for Claims: Claimants need to make a case for reasonable financial provision which did not form part of the will or under an intestacy. The court considers:

   – The financial needs and resources of the claimant.

   – The financial needs of other beneficiaries.

   – Any obligations owed by the deceased to the claimant.

   – The nature and size of the deceased’s estate.

   – Any other matters that the court considers relevant.

3. Discretionary Power of the Court: The court has the discretion to award financial provision but must keep in mind the justice of the case based on the evidence presented. There is no fixed formula for determining what is ‘reasonable’ provision.

4. Time Limits: Claims must typically be made within six months from the date of the grant of probate or letters of administration. However, it is possible to apply for an extension in certain circumstances.

5. Court Procedures: The process for making a claim involves filing an application in court, potentially attending a hearing, and the possibility of mediation to resolve disputes.

6. Impact on Wills: The Act does not invalidate a will but allows certain individuals to seek provision from the deceased’s estate regardless of the terms of the will.

This legislation is designed to ensure that individuals who are dependents or have close ties to the deceased are not left in financial hardship due to the deceased’s estate distribution. If you need detailed legal advice or assistance, consulting with us is highly recommended.

Conclusion

Contesting a will in England and Wales is a challenging process that requires careful consideration and informed decision-making. Understanding the grounds for contestation, navigating the legal process and overcoming potential obstacles are essential steps for anyone considering this course of action. While it can be difficult to contest a will, seeking professional guidance and preparing adequately can enhance the chances of a successful outcome.

Overall, each case is unique, and those who believe they have legitimate grounds for contesting a will should contact us early on to understand their options and chart the best course forward in their specific situation.

At Alexander JLO we have decades of experience of dealing with all aspects of law. We will be happy to discuss your case in a free no obligation consultation. Why not call us on +44 (0)20 7537 7000 or get in touch via the contact us button and see what we can do for you?

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on 26th June 2025 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. His profile on the independent Review Solicitor website can be found Here