Contesting a Will and Inheritance Disputes: What You Need to Know

Estate disputes — including challenges to the validity of a will and claims against the estate under inheritance legislation — have grown significantly in frequency in recent decades. Contributory factors include rising property values (larger estates create greater financial incentive for challenge), the increasing complexity of modern family structures (second marriages, children from multiple relationships), longer lifespans (cognitive capacity at the time of making a will becomes an issue), and reduced formality in how families communicate.

For HNW families with assets in multiple countries, the complexity compounds: which country's courts handle the dispute? Which country's law governs the succession? These questions can be as complex as the underlying dispute itself.

This guide covers the main grounds for challenging a will, who can challenge, the 1975 Inheritance Act, international jurisdiction questions, and how to structure estates to minimise the risk of dispute.

Grounds for Challenging a Will

A will can be challenged on several grounds. The grounds are distinct and require different types of evidence.

1. Lack of Testamentary Capacity

To make a valid will, the testator (the person making the will) must have "testamentary capacity" at the time of execution. The test was established in the 1870 case of Banks v Goodfellow and has not changed substantively since:

The testator must:

• Understand the nature of making a will and its effects
• Understand the extent of the property being disposed of
• Understand the claims of those who might reasonably expect to benefit
• Not suffer from any disorder of the mind that "poisons his affections, perverts his sense of right, or prevents the exercise of his natural faculties"

A person with dementia may still have testamentary capacity if they have "lucid intervals." Conversely, a person with no diagnosed cognitive condition may lack capacity if they were suffering from a severe depressive episode, drug or alcohol impairment, or other temporary incapacity at the time of signing.

Challenging capacity is one of the most common grounds for contesting a will, particularly for elderly testators. Evidence typically includes: medical records from the relevant period, the recollections of those present when the will was signed, and expert psychiatric evidence.

Preventive measure: when a testator has any known cognitive concerns, the solicitor drafting the will should commission a capacity assessment from the testator's GP or a specialist, contemporaneously with the will execution. A letter confirming capacity from a medical professional at the time of signing is strong evidence that protects against later challenge.

2. Undue Influence

Undue influence occurs when someone pressures the testator to make testamentary dispositions they would not freely have chosen. Unlike contract law (where "undue influence" can be presumed in certain relationships), the burden of proof in will disputes is on the challenger to demonstrate that the testator's free will was overborne.

This is a difficult ground to prove. Courts require evidence of:

• Coercion or pressure (not merely persuasion or requests)
• That the pressure was sufficient to overcome the testator's free will
• A causal connection between the influence and the disputed provision

Undue influence is commonly alleged but rarely proven in isolation. It is often combined with a capacity challenge (arguing both that the testator lacked capacity and was unduly influenced).

3. Fraud or Forgery

A will procured by fraud (where the testator was deceived as to the nature of the document they were signing, or deceived as to facts that caused them to make particular dispositions) is invalid. Forgery of the testator's signature is a criminal offence as well as a civil ground for challenge.

Fraud claims are serious; if proven, they may lead to criminal investigation as well as civil remedies.

4. Formal Invalidity

For a will to be valid under English law (Wills Act 1837):

• It must be in writing
• Signed by the testator (or by another person in the testator's presence and at their direction)
• The signature must be made or acknowledged in the presence of two or more witnesses present at the same time
• The witnesses must attest and sign in the presence of the testator

Failure to comply with any of these requirements renders the will invalid unless the court exercises its powers of dispensation. Common failures: witnesses signing when not in the testator's presence; only one witness; witnesses who are also beneficiaries (their gift is voided but the will itself remains valid).

5. Rectification

Where a will does not give effect to the testator's clear intentions due to a clerical error or failure to understand the testator's instructions, the court can rectify the will. This is not strictly a "challenge" — it is correcting an error — but it is a form of court intervention in the estate administration.

Claims Under the Inheritance Act 1975

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of person to apply to the court for financial provision from the estate if the will (or the intestacy rules, if there is no will) does not make "reasonable financial provision" for them.

Who Can Claim

• Spouse or civil partner (surviving)
• Former spouse or civil partner who has not remarried
• Cohabitant who lived with the deceased for the two years immediately before death
• Child of the deceased (including adult children)
• Anyone treated as a child of the family
• Any other person who was being maintained by the deceased immediately before death

The Timeframe

Claims must be issued within six months of the Grant of Probate being taken out. This is a strict deadline — the court can extend it but only in limited circumstances. Potential claimants should seek legal advice promptly.

The Test

For a spouse or civil partner, the court asks what is "reasonable provision" — which includes provision that goes beyond what is needed for mere financial maintenance.

For all other applicants, the court asks only whether the will (or intestacy) makes reasonable provision for the applicant's maintenance.

The court considers: the financial needs and resources of the applicant and other beneficiaries; the nature of the relationship; the size of the estate; any disability; contributions the applicant made to the estate.

Adult children and the 1975 Act: adult children can make 1975 Act claims, and the courts have shown willingness to entertain them in circumstances of genuine need. However, an adult child who is financially independent and self-sufficient faces a higher bar. These cases often reflect breakdown of family relationships rather than financial need.

International Jurisdiction: Which Courts Handle the Dispute?

For internationally mobile families, the jurisdiction question is often complex:

Moveable property (bank accounts, investments, personal property): the law of the country where the deceased was domiciled at death typically governs succession. A UK-domiciled individual's worldwide moveable estate is generally governed by English succession law (including the 1975 Act).

Immoveable property (land and buildings): governed by the law of the country where the property is located (lex situs). A dispute about a Spanish apartment would be in Spanish courts under Spanish law, regardless of the testator's domicile.

EU Succession Regulation (Brussels IV): applies to deaths after 17 August 2015 involving EU-member states. Allows a choice of the law of nationality rather than habitual residence. The UK is not bound by Brussels IV post-Brexit, but EU courts will apply it.

The 1975 Act and non-UK domiciliaries: the 1975 Act applies to estates being administered in England and Wales, even where the deceased was domiciled elsewhere — provided the property in question is situated in England and Wales. A non-UK domiciliary's UK property may be the subject of a 1975 Act claim even if their worldwide estate would otherwise be governed by foreign law.

The interaction of multiple legal systems in an international estate dispute is highly complex. Specialist international succession litigation lawyers in each relevant country may be required simultaneously.

Preventive Measures

Most will disputes can be substantially reduced in risk by good estate planning:

Clear and properly executed wills: ensure the will is professionally drafted, properly witnessed, and unambiguous. Use a solicitor — do-it-yourself wills carry significant risk of formal defects.

Capacity assessment: where there is any concern about the testator's cognitive health, commission a contemporaneous capacity assessment from a medical professional and retain it with the will papers.

Letter of wishes: explain the reasoning behind any unusual provisions — why a child has been excluded or left less than others; why a particular beneficiary has been treated differently. This does not bind the executors but provides context that can discourage challenge.

No-contest clause: English law allows a clause that disinherits any beneficiary who unsuccessfully challenges the will. However, such clauses have limited effectiveness in English law (a 1975 Act claim is not precluded by a no-contest clause) and should not substitute for genuine estate planning.

Family communication: where possible, discussing testamentary intentions with family members during the testator's lifetime reduces the shock and perceived injustice that often triggers disputes. It does not prevent disputes but can reduce them.

Regular review: a will that was appropriate ten years ago may not reflect current family circumstances, asset values, or relationships. Review the will every five years and after any significant life event.

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Inheritance law is complex and varies significantly between jurisdictions. This article provides a general overview of English law and does not constitute legal advice. Seek qualified legal advice for any potential inheritance dispute.

How Global Investments can help

Global Investments works with clients on estate planning that is designed to be clear, robust, and resistant to challenge — coordinating with specialist solicitors on will drafting, international succession planning, and the structuring of assets to reduce ambiguity and potential dispute. For clients with assets in multiple jurisdictions, we help ensure that succession planning is coherent across all relevant legal systems. Contact our team to discuss your estate planning arrangements.