Contesting a will: grounds and time limits

Why timing matters from the first phone call

If you are reading this because someone has died and their will does not look quite right, you have our sympathy. Contesting a will is rarely about greed; usually it is about fairness, or about a promise the deceased made and did not keep. Whatever your reasons, the single most important piece of practical advice we can offer is this: move quickly. Evidence fades, memories blur, and once the personal representatives have distributed the estate after the grant of probate, recovering what has been paid out becomes far harder.

This guide covers the main grounds for challenging a will in England and Wales, and the deadlines that apply. It is general information rather than tailored legal advice, so please do take advice on your own facts before deciding how to proceed.

The grounds for challenging a will's validity

A will is a formal legal document, and it can be challenged in several distinct ways. The most common grounds are:

• Want of due execution. The will must comply with section 9 of the Wills Act 1837: signed by the testator (or by someone at their direction, in their presence), in the presence of two witnesses who are both present at the same time and who then attest and sign. Signatures out of sequence or witnesses who were not both present are surprisingly common problems.
• Lack of testamentary capacity. The classic test comes from Banks v Goodfellow (1870). The testator must understand the nature of making a will and its effects, understand the extent of the property being disposed of, and appreciate the claims to which they ought to give effect — and be free of any disorder of mind that poisons their decisions. Capacity is judged at the moment of signing, not weeks earlier or later.
• Lack of knowledge and approval. Even with capacity, the testator must actually know and approve the contents. This is often raised where the will was prepared by a person who benefits under it, or where the testator was blind, illiterate, gravely ill or heavily medicated.
• Fraud or forgery. Rare, but where a will or a signature has been fabricated, the court can set it aside entirely.
• Rectification. Under section 20 of the Administration of Justice Act 1982, the court can correct a will that fails to carry out the testator's intentions because of a clerical error or a failure to understand instructions.

Undue influence: a higher bar than most people expect

Many people assume that a relative who bullied or pressured the deceased into changing their will has an easy case. In England and Wales, that is not so. Undue influence in probate means coercion — pressure so severe that the testator's wishes were overborne and the will reflects the influencer's intentions rather than their own. Persuasion, pleading, flattery and even emotional blackmail are not enough. Crucially, the burden of proof rests on the person making the allegation, and unlike in some other countries, it does not shift simply because the beneficiary was in a position of trust.

Successful cases tend to rest on a pattern of evidence: the testator's increasing isolation, sudden changes to long-settled arrangements, dependency on the beneficiary, and clear medical or care-home records showing vulnerability and confusion. GP notes, district nurse records, bank statements and the solicitor's file can all be decisive.

Claims for reasonable financial provision

Sometimes the will is perfectly valid, but it leaves someone without adequate provision. Under the Inheritance (Provision for Family and Dependants) Act 1975, certain people can apply for reasonable financial provision from the estate. Eligible applicants include a spouse or civil partner, a former spouse who has not remarried, a cohabitant who lived with the deceased for at least two years, a child of any age, and anyone maintained by the deceased. This is not a challenge to validity — it is a separate claim, but it is often the most realistic route.

Key time limits you cannot ignore

• 1975 Act claims: six months from the date the grant of representation is taken out. The court can extend this, but only in limited circumstances, and it is unwise to rely on it.
• Rectification claims: six months from the date representation was first taken out, again subject to a possible extension.
• Validity challenges (capacity, undue influence, execution, forgery): no fixed statutory limitation period, but delay is dangerous. The doctrine of laches and the court's case management powers mean stale claims can be struck out.
• Fraud-based claims: up to twelve years for claims to recover property, running from discovery of the fraud where it has been concealed.
• Caveats: a caveat entered at the Probate Registry blocks a grant for six months and can be renewed, giving you breathing space to investigate.

Practical steps to protect your position

If you believe a will is invalid or that you should have been provided for, act now rather than after the funeral. Ask the executors, in writing, not to distribute the estate until your concerns are resolved. Request copies of the will and any earlier versions, and ask the solicitor who drafted it to preserve their file — they may be required to provide a statement of the testator's instructions, often called a Larke v Nugent statement. Obtain the deceased's medical records and keep a dated note of everything you remember about their health, behaviour and relationships.

Early advice is invaluable. A solicitor can tell you within a short meeting whether you have realistic grounds, whether a caveat should be entered, and whether mediation might resolve matters more cheaply than court. Costs in probate disputes can be substantial, and the general rule is that they follow the event — but the court has wide discretion, and conduct, including unreasonable refusal to negotiate, is taken into account. Handled early and sensibly, many disputes settle without a contested hearing; handled late, they often become expensive and painful for everyone involved.