When you expect to benefit from an estate but are left out, it can be a gut-wrenching experience. If the testator - the person who made the will - has told you to expect a gift, but you don't, or if the will in general differs from their stated intentions, it can be difficult to understand where things went wrong. In such cases, however, there may be evidence that the testator did not have the capacity to make their will, did not know what was in it, or was subject to undue influence by someone who wanted to benefit.

In these situations, contesting a will is sometimes an option. This means issuing a legal challenge on the grounds that the will is invalid, based on specific legal grounds. If you are considering contesting a will, you will need strong legal support from the start of the process to have the best chance of a successful outcome.

At Switalskis, we know the legal complexities of contesting a will inside and out, and we'll stand beside you from the start of the process to the end. We can explain your legal standing, help you to understand whether or not you can challenge a will, advise you of the other options that might be available, and provide the legal services you need throughout.

Contesting a will typically involves challenging its validity based on specific legal grounds. Ideally, you should know what the testator’s previous will says, as a successful challenge means that a previous version may become the valid will. Alternatively, if there is no previous valid will, the estate will be distributed according to the rules of intestacy. This may mean that, even if you successfully contest the will, you won’t receive a gift in any case.

Once you are certain of your position, you can consider issuing your challenge. The legal grounds for contesting a will are as follows:

Lack of testamentary capacity

The person making the will (the testator) must have had the mental capacity to understand the implications of creating the will at the time it was made. This means that they are capable of making their own decisions, and that they are able to consider all of the following:

• Why they are making a will and what effect it will have
•  That the will is legally binding and overrules any previous will
• The full extent of their estate
• Any potential claims from beneficiaries and financial dependants

If any one of these conditions isn't met, or if the person making the will was suffering from a mental disorder that would potentially affect these abilities, they may not have had the required testamentary capacity. This can be a ground for contesting the will. You may need medical evidence or statements from witnesses to support claims of a lack of testamentary capacity and challenge the will on these grounds.

Lack of valid execution

For a will to be valid in England and Wales, it must comply with the requirements of the Wills Act 1837, which include:

• The will must be in writing.
• It must be signed by the testator (or someone else in their presence and by their direction).
• The signature must be made or acknowledged in the presence of two witnesses present at the same time.
• Each witness must sign the will or acknowledge their signature in the testator's presence.

While witnesses previously had to be in the same room as the person making the will, the will can now be signed over a video call. However, this has introduced some ambiguity about certain wills and whether or not they meet the requirements to be legally valid. Failing to meet any of the above requirements will render the will invalid and may be grounds for contesting it.

Undue influence

A will can be contested if you believe that the testator was coerced or unduly influenced into making or altering the will. This could involve manipulation, pressure, or threats from someone seeking to benefit unfairly. This can be challenging, as the presumption of coercion does not arise automatically, and you must prove that actual undue influence took place to contest a will on these grounds.

Fraud or forgery

If you can prove that the will was forged or fraudulently created, you can challenge it. This might require evidence that the testator’s signature was forged or that they were deceived about the contents of the will. Evidence such as handwriting analysis or witness testimony may be required to substantiate these claims.

Lack of knowledge and approval

The testator must have known and approved the content of the will. Contesting a will may be possible if there are suspicions that the testator did not understand or agree to the provisions. This could be due to any number of reasons - for example, if they were illiterate or had a visual impairment, and relied on someone else to write the document for them because they could not do so for themselves. If instructions were taken from a different person than the testator, such as a relative, this can also indicate that the testator may not have understood the will’s contents. Wills prepared under unusual circumstances or where the provisions do not match the person making the will's stated intentions could face scrutiny under this ground.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975

While this is not the same as contesting a will, it may be possible to make a claim on the grounds that a will fails to provide reasonable financial provision for certain individuals, including:

• The testator's spouse or civil partner;
• A former spouse or civil partner (if the person did not remarry);
• A cohabitee who lived with the deceased;
• The testator's children (or people treated as children by the testator); and
• Other financial dependants who were maintained by the deceased

Inheritance Act claims must usually be made within six months of a grant of probate being issued, so it's important to seek legal advice at your earliest opportunity.

The laws of intestacy determine how a person’s estate is distributed if they die without leaving a valid will. In England and Wales, the distribution is governed by a set of statutory rules that implement a hierarchy of inheritance:

If the deceased has a spouse or civil partner and children, the inheritance is divided between them. This includes anyone who is legally the deceased's spouse or civil partner, even if the relationship has broken down. It does not include "common-law" spouses or partners who lived together but were not married. If the deceased has a spouse or civil partner but no children, the spouse or civil partner inherits the entire estate. When there is no spouse or civil partner, the estate is distributed in the following order:

• Children (or their descendants): the estate is shared equally among the children. If the person's child died before them, any descendants of the child inherit their share.
• Parents: if there are no children, the estate passes to the surviving parents.
• Siblings (or their descendants): if there are no children or parents, the estate is shared equally among full siblings. If a sibling has predeceased, their descendants inherit their share. If there are no full siblings, the estate is shared equally among half-siblings or their descendants.
• Grandparents: If there are no closer relatives, the estate passes to surviving grandparents.
• Uncles and Aunts (or their descendants): If there are no grandparents, the estate passes to uncles and aunts (by full blood) or their descendants, and if there are no full uncles or aunts, the estate passes to half-uncles and half-aunts or their descendants.

If none of these relatives exist, the estate passes to the Crown under the rules of bona vacantia . To inherit, spouses or civil partners must have been legally married or in a civil partnership with the deceased at the time that they died. Ex-partners (who are divorced, or separated but not legally divorced) are not entitled to inherit. As we've noted, unmarried partners have no automatic right to inherit under intestacy rules, regardless of the length of the relationship or any other factors.

The provision for children includes only biological children, adopted children, and children conceived but not born before the parent’s death. Stepchildren are not included unless they were legally adopted by the deceased.

Assets held as joint tenants (e.g., a house or bank account) pass automatically to the surviving joint owner and are not subject to intestacy rules. However, assets held as tenants in common are included in the estate.

Given both the emotional and legal costs involved in contesting a will, it's vital to consider the outcomes and what you will achieve from a successful outcome. If overturning the will results in intestacy, there is still a risk that you will not inherit under these terms, so it's crucial to consider all the options before moving ahead.