Can you Challenge a Will?

What can you do if a loved one unexpectedly leaves you out of a will?

Firstly you can consider whether the will itself can be challenged. This can be done by asking:

  1. Were the formalities (e.g. witnessing) done correctly?
  2. Did someone exercise undue influence over the person making the will? 
  3. Did the person making the will have the mental ability (known as capacity) to do so?

These challenges, especially ones based on undue influence or lack of capacity, can be difficult to prove but if you think there is something wrong with a will you should seek legal advice quickly as it is more difficult to overturn a will once it is admitted to probate. If a will is successfully challenged the estate will be distributed according to the last valid will, or if one does not exist, the rules of intestacy, so you need to be certain of what you will achieve.

If a will is valid you could consider a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This act lets the court adjust a will in favour of spouses, co-habitees, children and dependants if the will did not leave them adequate support. It is an exception to the rule that you can leave your money to who you like when you die. Spouses are entitled to a higher level of provision from the will. They do not need to prove that provision must be necessary for their “maintenance” whilst other dependents do.

Kate Barnes, dispute resolution solicitor at Bates Wells & Braithwaite says: “I have often used this act when someone has remarried, or co-habited, later in life and has not adjusted their will to take into account the new spouse or partner. For example by leaving their spouse a small sum of money but not the house they live in.”

“Claims often involve conflict between members of families and can be difficult but are nearly always resolved by agreement between the parties; perhaps by the surviving spouse being allowed to live in the property rent free for the rest of their life or by the payment of a lump sum to allow them to continue their previous lifestyle.”

If the matter has to go to court the judge can award periodical payments, lump sums or the transfer of a property. The Court will take into account the financial needs and resources of the people involved and the responsibilities the deceased had to the applicant as well as the size and nature of the deceased’s assets.

Inheritance Act claims must be made within 6 months of probate being obtained so advice must be sought promptly.

Written by Glenn Blair – Bates Wells & Braithwaite – 01787 880440

Glenn Blair

Glenn joined Bates Wells & Braithwaite in 2009 and gained experience across the firm before qualifying as a solicitor in November 2015. He has a law degree from the University of East Anglia and took the Legal Practice Course at the College of Law, London.

Glenn is part of the firm’s Wills, Trusts and Probate department and specialises in wills, powers of attorney and the administration of estates.

Away from work, Glenn takes a keen interest in watching and playing various sports and is a long-term season ticket holder at his local football club, Colchester United. A lot of his spare time is also spent enjoying his young family.


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The Directors of Bates Wells & Braithwaite

Last updated: 11/01/2021