One of the questions I am asked surprisingly often is whether it is possible to challenge a Will. The simple answer is yes, but only in certain circumstances.
Many people assume that if someone has made a Will, their wishes cannot be questioned after they die. In reality, there are situations where it is possible to challenge a Will, particularly if there are concerns about how it was prepared or whether it truly reflects the person’s wishes.
As a solicitor with over 25 years’ experience advising families across Dedham, Colchester, and the wider Essex and Suffolk area, I have seen how emotionally difficult these disputes can become. They often arise at an already distressing time and can cause lasting divisions within families.
The good news is that many disputes can be avoided through careful planning and professionally drafted Wills. I always encourage clients to think not only about who they want to benefit, but also about reducing the risk that someone may later challenge a Will.
When Can Someone Challenge a Will?
Not every disappointment over an inheritance is enough to challenge a Will successfully.
The law allows someone to challenge a Will only where there are recognised legal grounds.
Some of the most common include:
– Lack of mental capacity
– Undue influence
– Lack of proper legal formalities
– Fraud or forgery
– Poor drafting or ambiguity
– Financial dependency claims under the Inheritance (Provision for Family and Dependants) Act 1975
Each type of claim has different legal requirements, and every case depends on its individual facts.
Challenge a Will Because of Lack of Mental Capacity
One of the most common reasons to challenge a Will is an allegation that the person making it did not have the necessary mental capacity.
To make a valid Will, the individual must understand:
-That they are making a Will.
-The nature and value of their estate in broad terms.
-Who might reasonably expect to benefit.
-How their Will distributes their assets.
Simply having dementia or memory problems does not automatically mean someone lacks capacity. Capacity is assessed at the time the Will is signed, and many people with an early diagnosis remain perfectly capable of making important decisions.
A solicitor will normally take careful steps to assess capacity and, where appropriate, obtain medical evidence. This can significantly reduce the likelihood that someone will later challenge a Will on these grounds.
Challenge a Will Because of Undue Influence
Undue influence occurs when someone pressures or coerces another person into making a Will they would not otherwise have made.
Examples might include:
-Persistent emotional pressure.
-Isolation from family members.
-Threats or intimidation.
– A vulnerable person becoming dependent upon someone controlling their decisions.
These cases can be difficult to prove because there is often very little direct evidence. Simply persuading someone to change their Will is not enough. The court must be satisfied that the person’s own free wishes were effectively overridden.
Professional Will preparation can help reduce the risk that someone may later challenge a Will by ensuring instructions come directly from the person making it.
Challenge a Will Because of Poor Drafting
Many disputes arise not because of family disagreements but because a poorly drafted Will creates uncertainty.
Examples include:
-Ambiguous wording.
-Conflicting clauses.
-Failure to deal with all assets.
-Incorrect beneficiary details.
-Missing substitute beneficiaries.
Poor drafting can lead to expensive Probate disputes that could easily have been avoided.
I always explain legal terms in plain English and prepare comprehensive Wills that reflect each client’s wishes and circumstances. Throughout my career, I have prepared thousands of Wills and understand how careful drafting can help reduce the possibility of future disputes.
Challenge a Will Through a Dependency Claim
Not every claim seeks to prove that a Will is invalid.
Sometimes a person accepts that the Will is legally valid but believes it has failed to make reasonable financial provision for them.
Certain people may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, including:
-A spouse or civil partner.
-A former spouse or civil partner in certain circumstances.
-Children.
-Someone treated as a child of the family.
– A person who was financially dependent upon the deceased.
These claims are often referred to as dependency claims.
The court considers many factors, including:
-The applicant’s financial needs.
-The size of the estate.
-The deceased’s obligations towards the applicant.
-The needs of other beneficiaries.
These claims do not necessarily seek to challenge a Will itself but instead ask the court to alter how the estate is distributed.
How Professional Will Drafting Helps Prevent Disputes
Although no solicitor can guarantee that nobody will ever challenge a Will, professional advice can significantly reduce the risk.
When preparing a Will, I take time to understand your family circumstances and discuss any areas that may give rise to future disagreements. I also advise where conversations with family members or potential beneficiaries may help reduce the possibility of disputes later.
As a self-employed Consultant Solicitor working through Setfords, an SRA-regulated law firm, every client deals directly with me from start to finish. I have complete autonomy over my caseload, no billing targets and the flexibility to provide a genuinely personal service. Whether we meet in your home, at your workplace or online, my aim is to make the process as straightforward and stress-free as possible.
What Should You Do if You Think You Need to Challenge a Will?
If you believe there are grounds to challenge a Will, it is important to seek legal advice as soon as possible.
Some claims have strict time limits, and delays can affect your options.
Equally, if you are making a Will and are concerned that someone may later challenge a Will, taking professional advice now can provide valuable protection for both you and your loved ones.
Practical Takeaways
-It is possible to challenge a Will, but only on recognised legal grounds.
-Common reasons include lack of capacity, undue influence, poor drafting and dependency claims.
-Not every family disagreement results in a successful claim.
-Professionally drafted Wills can significantly reduce the risk of future disputes.
-Early legal advice is important whether you wish to challenge a Will or protect one from future claims.
Frequently Asked Questions
Can anyone challenge a Will?
No. A person usually needs recognised legal grounds or eligibility under the relevant legislation before they can challenge a Will.
How long do I have to challenge a Will?
The time limit depends on the type of claim. Some claims, particularly financial dependency claims, have strict deadlines, so legal advice should be obtained promptly.
Does dementia automatically mean someone cannot make a Will?
No. Mental capacity is assessed at the time the Will is made, and many people with dementia retain the legal capacity to make a valid Will.
Does using a solicitor prevent someone from challenging a Will?
No solicitor can guarantee a claim will never be brought. However, professionally prepared Wills, careful capacity assessments and comprehensive drafting can greatly reduce the risk of a successful challenge.
Conclusion
Disputes over Wills are rarely just about money. They often arise from grief, misunderstandings and complex family relationships. While it is possible to challenge a Will in certain circumstances, many disputes can be avoided through careful planning and professional legal advice.
Taking the time to prepare a properly drafted Will can provide reassurance that your wishes are clearly recorded and help minimise the likelihood of costly disputes for those you leave behind.
I’m Here to Help
If you would like advice about making a professionally drafted Will, or you are concerned about whether someone may be able to challenge a Will, I would be happy to help.
I offer appointments at your home, your workplace or online for clients across Dedham, Colchester and throughout Essex, Suffolk and beyond. If you have any questions or would like to arrange an initial conversation, please get in touch.