Can I challenge a will?

Yes, you can challenge a will. There are several different grounds for challenging a will, depending on the circumstances and the evidence available. These grounds (explained in more detail below) include issues with the execution of the will, lack of mental capacity, lack of knowledge and approval, and undue influence/duress. Sometimes, a will can be challenged by someone who feels they have been unreasonably provided for under the will or who have been excluded altogether.

What are the common reasons for challenging a will?

Some grounds for challenging a will are: The deceased did not have the required mental capacity when making the will and did not understand what they were doing, what their estate comprised of, who they should have considered as beneficiaries or that they were suffering from delusions. The deceased did not fully understand and approve the contents of the will (eg perhaps they thought the will in fact said something different). The deceased was under coercive pressure or undue influence from someone else when making the will. This would be relevant if they were coerced, threatened, manipulated, or bribed by a family member, friend, partner, or someone else to make a will which did not represent their true wishes. Due to forgery and/or fraud (eg the will wasn’t the result of instructions from the deceased and/or wasn’t signed by them). The will wasn’t properly executed in accordance with the strict rules applicable under the Wills Act (eg two witnesses may not have been present when the will was signed). The will did not reflect the wishes of the deceased due to a clerical error or the will drafter’s failure to understand the deceased’s wishes.

How long do I have to challenge a will?

If you want to challenge a will, although there is technically no time limit which applies, you should ideally seek legal advice from a specialist lawyer as soon as possible and preferably well before the estate in question is distributed. Note however that there is a short time limit for making a claim under the Inheritance (Provision for Family and Dependants) Act 1975, if you have not been reasonably provided for or excluded from a will. The time limit for this type of claim is six months from the date of the Grant of Probate or Letters of Administration. If you are outside this time limit, you should still seek legal advice as in certain cases the court is prepared to allow a claim to be made out of time, but you must act as quickly as possible.

I was made a promise by the deceased, but it is not in their will – what can I do?

One possible option is to claim under the doctrine of proprietary estoppel, which in certain circumstances allows you to enforce a promise that was made to you by the deceased before their death. Where proprietary estoppel is claimed, you must show that a promise was made to you and that you relied on that promise to your detriment. These claims can be difficult to prove in practice given much of the evidence is usually verbal rather than documented and so you should seek specialist legal advice as soon as possible.

What sort of evidence will I need to challenge a will?

Relevant evidence you might need to assist in proving your case will depend on the sort of challenge you are raising, but can include: Medical notes and records, medical reports showing what the deceased’s mental state was over time. Letters, emails, telephone records or other documents that show the deceased’s wishes or how they regarded certain family members / beneficiaries. Any documents which show how someone else may have influenced or pressured the deceased. Testimonies from witnesses who saw or heard something suspicious about how the deceased made their will. Will file/s or solicitors/accountants/financial advisors files showing evidence of the deceased’s wishes and intentions. Bank/savings statements for the deceased. Examples of the deceased’s signature if these differ from the signature on the will.

What is an Inheritance Act or 1975 Act claim?

An Inheritance Act claim (sometimes called a 1975 Act claim) is one that can be made by certain relatives/spouses/civil partners/children or people who were being maintained by the deceased immediately before their death where reasonable financial provision has not been made for that person. Such a claim is made under The Inheritance (Provision for Family and Dependants) Act 1975 and requires the court to consider the factors laid down in section of the Act, such as: - the financial resources/needs of the applicant and other beneficiaries, the size and nature of the estate, any obligations/responsibilities the deceased had towards the applicant/beneficiaries. any other matters/conduct that may be relevant. Following consideration of the above, and if the application is successful, the Court can make a range of awards, including the transfer of property, lifetime rights to live in a property, a lump sum or periodic payments.

What is reasonable financial provision under the 1975 Act?

Under the 1975 Act, you can challenge a will or intestacy claiming you have not received reasonable financial provision from an estate. This will depend on numerous factors such as the individual circumstances of the applicant, the size/nature of the estate and the needs and financial circumstances of the other beneficiaries. Unless the applicant is a spouse or civil partner, they have to show they need provision for their maintenance i.e., they need something from the estate in order to maintain themselves. This is usually evidenced by a shortfall between an applicant’s income and outgoings. Where the applicant is a spouse or civil partner, there is no need to show that financial provision is needed for maintenance. Instead, the benchmark is what is reasonable financial provision in all the circumstances of the case. Given the wide discretion of the court and the large number of factors which need to be taken into account, predicting the outcome of a claim under the 1975 Act can be difficult.

Can an executor or trustee be removed and, if so, how?

Yes, they can be removed – but only in certain circumstances. There are a number of ways an executor/trustee can be removed. An executor can chose to renounce (stand down) voluntarily before they take any substantive steps to administer an estate. However, once they take any substantive steps in the estate (called intermeddling) or taken out a Grant of Probate they can only be removed via a court order. A court will make such an order removing an executor if there are good reasons to do so – i.e. the executor has lost capacity, is no longer willing/capable of dealing with the estate or has acted in serious breach of their duties (e.g. by failing to pay the beneficiaries their entitlement). A trustee can retire voluntarily provided there are other existing or new trustees who will continue to act. If a trustee has acted in breach of duty, they can be removed by the court following an application from a dissatisfied beneficiary.

Can I challenge a power of attorney?

Yes, you can. You can raise a challenge if you think the power of attorney document was not executed correctly, there were issues with the donor’s capacity when it was signed or there are suspicions an attorney is not acting in the best interests of the donor and has breached their duties. It is advisable to gather evidence to support any suspicions and seek legal advice as early as possible. Any concerns can initially be raised with the attorney in question. It is also possible to report such suspicions to the Office of the Public Guardian who may investigate further and ultimately involve the Court of Protection if needed to ensure the interests of the donor are looked after.

What information am I entitled to as a beneficiary of a trust?

As a beneficiary, you are entitled to request certain information from the trustees. Ordinarily a beneficiary is entitled to know that they are a beneficiary in the first place and to see the trust document plus annual trust accounts on request. You have no absolute right to see any further documents although the position will vary depending on the complexity and value of the trust, whether there is a dispute and the individual circumstances. Some trustees will make disclosure of documentation to beneficiaries quite readily whereas others will be more resistant. If in doubt what you are entitled to see, seek expert advice.

Who pays the costs of a will dispute?

Will disputes can be lengthy, acrimonious and expensive. The starting position in relation to costs is that the loser pays. This means that the successful party should usually receive some or all of their costs as part of the settlement or court order. These costs can come from the losing party or from the estate depending on the circumstances of the case. The court has a wide discretion though on what costs order to make and this can depend on the reasonableness of the costs and the conduct of the parties. If you lose a claim, there is a risk you would be ordered to pay the other side’s costs as well having to pay your own. It is worth exploring all available options to assist with the payment of your legal costs, such as funding arrangements (no win, no fee or deferred fee arrangements), legal expenses insurance or after the event insurance.

How long will I have to wait before I get my entitlement under a will?

This will vary depending on the individual circumstances of your case. An executor has a duty to act in the best interests of the beneficiaries and to act in timely manner – and so they should pay your entitlement as soon as reasonably possible. However, this will vary depending on the size, nature (e.g., there may be property that needs to be sold) and complexity of the estate in question. Before an estate can be administered, a grant of probate or letters of administration needs to be issued – and this can take several months. Following this, steps can then be taken to liquidise the estate assets, pay debts, taxes, and fees before distribution. If the estate is large and taking a long time to administer, it may be possible to seek an interim distribution. An executor is not bound to make distributions from the estate in the first year after the deceased died, but after that time beneficiaries are entitled to interest on any outstanding legacies.

My long term partner died intestate. Do I have any rights as a common law spouse?

There is no such thing as a common law spouse, even if a couple have been living together for a long time and/or have children together. Under the intestacy rules (see below), a partner has no automatic right to inherit. However, they may be able to make a claim against their deceased’s partner’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 or for a beneficial interest in any shared property. As the position can be complicated it is sensible to seek specialist legal advice as soon as possible.

What are the intestacy rules?

These are the statutory rules that apply to the administration of an estate where the deceased died intestate i.e., without making a will. In such circumstances, their estate will be administered in accordance with the intestacy rules valid at the date of death. The rules specify how the estate should be divided between family members depending on the deceased’s circumstances (e.g., whether they were married, had children etc).

How can Mills & Reeve help me?

The Mills & Reeve Estate, Trust and Will Disputes team provides expert legal services for all types of trust and will disputes. They are specialist lawyers and many of the team are members of the industry’s professional body; ACTAPS (Association of Contentious Trust and Probate Specialists) Here are just a few of the services the team offers: Dealing with disputes between executors/trustees and beneficiaries. Removing or substituting executors or trustees. Challenging a will, for example because the deceased lacked capacity to make decisions, if a beneficiary put undue pressure on them or for want of knowledge and approval by the deceased. Challenging the distribution of an estate under the Inheritance (Provision for Family and Dependants) Act 1975. Contentious matters involving powers of attorney and the Court of Protection. Dealing with mismanaged trusts, for example, if a trustee has made inappropriate investments. Helping with disputes over bequests or gifts left to charity in a will. Claims under the doctrine of proprietary estoppel. Advising on requests for information from a trust or estate

Estate, trust and will disputes

When it comes to disputes over estates, emotions can run high and things can quickly escalate. If you or your family are struggling, we can help.

We know how difficult disagreements like this can be. We’ll be sympathetic and sensitive, while still focused on getting the best result for you.

How we can help

We act for all sorts of clients in this area, either as claimant or defendant. That includes individual beneficiaries, trustees, executors, administrators and charities.

Some of the services we offer include:

dealing with disagreements over distributing assets in an estate, or managing a trust
removing executors or removing trustees
substituting executors or substituting trustees
challenging a will, for example because the testator lacked capacity to make decisions, if another beneficiary put undue pressure on them or for want of knowledge and approval by the testator
challenging the distribution of an estate using the Inheritance (Provision for Family and Dependants) Act 1975 (often called a 1975 Act claim)
contentious matters involving the Court of Protection
dealing with mismanaged trusts, for example a trustee making inappropriate investments
helping with disputes over bequests or gifts left to charity in a will

In these types of disputes, sometimes it’s impossible to avoid going to court. But we’ll always try to fix things as quickly and cost-effectively as we can.

Our lawyers

Our team are experts in this complicated field. Most are members of the industry’s top professional body too (ACTAPS – the Association of Contentious Trust & Probate Specialists).

Our experience

Here are just some examples of our recent work in this area:

we were part of Burns v Burns, a significant Court of Appeal case that considered the capacity, knowledge and approval of an elderly testator
we recovered a large sum of money for a widow who was left very little by her late husband
we advised in Kennedy v Kennedy, a landmark case applying new law on equitable mistake
we protected a major musical education charity’s position as beneficiary in a substantial Inheritance Act claim
we helped the executors of an extremely valuable estate interpret a handwritten home-made will
we helped a Cambridge college in a dispute with the deceased’s partner over a multi-jurisdictional £3m estate

Frequently Asked Questions

Can I challenge a will?

Yes, you can challenge a will. There are several different grounds for challenging a will, depending on the circumstances and the evidence available. These grounds (explained in more detail below) include issues with the execution of the will, lack of mental capacity, lack of knowledge and approval, and undue influence/duress. Sometimes, a will can be challenged by someone who feels they have been unreasonably provided for under the will or who have been excluded altogether.
What are the common reasons for challenging a will?
Some grounds for challenging a will are:
1. The deceased did not have the required mental capacity when making the will and did not understand what they were doing, what their estate comprised of, who they should have considered as beneficiaries or that they were suffering from delusions.
2. The deceased did not fully understand and approve the contents of the will (eg perhaps they thought the will in fact said something different).
3. The deceased was under coercive pressure or undue influence from someone else when making the will. This would be relevant if they were coerced, threatened, manipulated, or bribed by a family member, friend, partner, or someone else to make a will which did not represent their true wishes.
4. Due to forgery and/or fraud (eg the will wasn’t the result of instructions from the deceased and/or wasn’t signed by them).
5. The will wasn’t properly executed in accordance with the strict rules applicable under the Wills Act (eg two witnesses may not have been present when the will was signed).
6. The will did not reflect the wishes of the deceased due to a clerical error or the will drafter’s failure to understand the deceased’s wishes.
How long do I have to challenge a will?

If you want to challenge a will, although there is technically no time limit which applies, you should ideally seek legal advice from a specialist lawyer as soon as possible and preferably well before the estate in question is distributed. Note however that there is a short time limit for making a claim under the Inheritance (Provision for Family and Dependants) Act 1975, if you have not been reasonably provided for or excluded from a will. The time limit for this type of claim is six months from the date of the Grant of Probate or Letters of Administration. If you are outside this time limit, you should still seek legal advice as in certain cases the court is prepared to allow a claim to be made out of time, but you must act as quickly as possible.
I was made a promise by the deceased, but it is not in their will – what can I do?

One possible option is to claim under the doctrine of proprietary estoppel, which in certain circumstances allows you to enforce a promise that was made to you by the deceased before their death. Where proprietary estoppel is claimed, you must show that a promise was made to you and that you relied on that promise to your detriment. These claims can be difficult to prove in practice given much of the evidence is usually verbal rather than documented and so you should seek specialist legal advice as soon as possible.
What sort of evidence will I need to challenge a will?
Relevant evidence you might need to assist in proving your case will depend on the sort of challenge you are raising, but can include:
- Medical notes and records, medical reports showing what the deceased’s mental state was over time.
- Letters, emails, telephone records or other documents that show the deceased’s wishes or how they regarded certain family members / beneficiaries.
- Any documents which show how someone else may have influenced or pressured the deceased.
- Testimonies from witnesses who saw or heard something suspicious about how the deceased made their will.
- Will file/s or solicitors/accountants/financial advisors files showing evidence of the deceased’s wishes and intentions.
- Bank/savings statements for the deceased.
- Examples of the deceased’s signature if these differ from the signature on the will.
What is an Inheritance Act or 1975 Act claim?
An Inheritance Act claim (sometimes called a 1975 Act claim) is one that can be made by certain relatives/spouses/civil partners/children or people who were being maintained by the deceased immediately before their death where reasonable financial provision has not been made for that person. Such a claim is made under The Inheritance (Provision for Family and Dependants) Act 1975 and requires the court to consider the factors laid down in section of the Act, such as: -
1. the financial resources/needs of the applicant and other beneficiaries,
2. the size and nature of the estate,
3. any obligations/responsibilities the deceased had towards the applicant/beneficiaries.
4. any other matters/conduct that may be relevant.
Following consideration of the above, and if the application is successful, the Court can make a range of awards, including the transfer of property, lifetime rights to live in a property, a lump sum or periodic payments.
What is reasonable financial provision under the 1975 Act?

Under the 1975 Act, you can challenge a will or intestacy claiming you have not received reasonable financial provision from an estate. This will depend on numerous factors such as the individual circumstances of the applicant, the size/nature of the estate and the needs and financial circumstances of the other beneficiaries. Unless the applicant is a spouse or civil partner, they have to show they need provision for their maintenance i.e., they need something from the estate in order to maintain themselves. This is usually evidenced by a shortfall between an applicant’s income and outgoings. Where the applicant is a spouse or civil partner, there is no need to show that financial provision is needed for maintenance. Instead, the benchmark is what is reasonable financial provision in all the circumstances of the case. Given the wide discretion of the court and the large number of factors which need to be taken into account, predicting the outcome of a claim under the 1975 Act can be difficult.
Can an executor or trustee be removed and, if so, how?

Yes, they can be removed – but only in certain circumstances. There are a number of ways an executor/trustee can be removed. An executor can chose to renounce (stand down) voluntarily before they take any substantive steps to administer an estate. However, once they take any substantive steps in the estate (called intermeddling) or taken out a Grant of Probate they can only be removed via a court order. A court will make such an order removing an executor if there are good reasons to do so – i.e. the executor has lost capacity, is no longer willing/capable of dealing with the estate or has acted in serious breach of their duties (e.g. by failing to pay the beneficiaries their entitlement).

A trustee can retire voluntarily provided there are other existing or new trustees who will continue to act. If a trustee has acted in breach of duty, they can be removed by the court following an application from a dissatisfied beneficiary.
Can I challenge a power of attorney?

Yes, you can. You can raise a challenge if you think the power of attorney document was not executed correctly, there were issues with the donor’s capacity when it was signed or there are suspicions an attorney is not acting in the best interests of the donor and has breached their duties. It is advisable to gather evidence to support any suspicions and seek legal advice as early as possible. Any concerns can initially be raised with the attorney in question. It is also possible to report such suspicions to the Office of the Public Guardian who may investigate further and ultimately involve the Court of Protection if needed to ensure the interests of the donor are looked after.
What information am I entitled to as a beneficiary of a trust?

As a beneficiary, you are entitled to request certain information from the trustees. Ordinarily a beneficiary is entitled to know that they are a beneficiary in the first place and to see the trust document plus annual trust accounts on request. You have no absolute right to see any further documents although the position will vary depending on the complexity and value of the trust, whether there is a dispute and the individual circumstances. Some trustees will make disclosure of documentation to beneficiaries quite readily whereas others will be more resistant. If in doubt what you are entitled to see, seek expert advice.
Who pays the costs of a will dispute?

Will disputes can be lengthy, acrimonious and expensive. The starting position in relation to costs is that the loser pays. This means that the successful party should usually receive some or all of their costs as part of the settlement or court order. These costs can come from the losing party or from the estate depending on the circumstances of the case. The court has a wide discretion though on what costs order to make and this can depend on the reasonableness of the costs and the conduct of the parties. If you lose a claim, there is a risk you would be ordered to pay the other side’s costs as well having to pay your own. It is worth exploring all available options to assist with the payment of your legal costs, such as funding arrangements (no win, no fee or deferred fee arrangements), legal expenses insurance or after the event insurance.
How long will I have to wait before I get my entitlement under a will?

This will vary depending on the individual circumstances of your case. An executor has a duty to act in the best interests of the beneficiaries and to act in timely manner – and so they should pay your entitlement as soon as reasonably possible. However, this will vary depending on the size, nature (e.g., there may be property that needs to be sold) and complexity of the estate in question. Before an estate can be administered, a grant of probate or letters of administration needs to be issued – and this can take several months. Following this, steps can then be taken to liquidise the estate assets, pay debts, taxes, and fees before distribution. If the estate is large and taking a long time to administer, it may be possible to seek an interim distribution.

An executor is not bound to make distributions from the estate in the first year after the deceased died, but after that time beneficiaries are entitled to interest on any outstanding legacies.
My long term partner died intestate. Do I have any rights as a common law spouse?

There is no such thing as a common law spouse, even if a couple have been living together for a long time and/or have children together. Under the intestacy rules (see below), a partner has no automatic right to inherit. However, they may be able to make a claim against their deceased’s partner’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 or for a beneficial interest in any shared property. As the position can be complicated it is sensible to seek specialist legal advice as soon as possible.
What are the intestacy rules?

These are the statutory rules that apply to the administration of an estate where the deceased died intestate i.e., without making a will. In such circumstances, their estate will be administered in accordance with the intestacy rules valid at the date of death. The rules specify how the estate should be divided between family members depending on the deceased’s circumstances (e.g., whether they were married, had children etc).
How can Mills & Reeve help me?
The Mills & Reeve Estate, Trust and Will Disputes team provides expert legal services for all types of trust and will disputes. They are specialist lawyers and many of the team are members of the industry’s professional body; ACTAPS (Association of Contentious Trust and Probate Specialists)

Here are just a few of the services the team offers:
- Dealing with disputes between executors/trustees and beneficiaries.
- Removing or substituting executors or trustees.
- Challenging a will, for example because the deceased lacked capacity to make decisions, if a beneficiary put undue pressure on them or for want of knowledge and approval by the deceased.
- Challenging the distribution of an estate under the Inheritance (Provision for Family and Dependants) Act 1975.
- Contentious matters involving powers of attorney and the Court of Protection.
- Dealing with mismanaged trusts, for example, if a trustee has made inappropriate investments.
- Helping with disputes over bequests or gifts left to charity in a will.
- Claims under the doctrine of proprietary estoppel.
- Advising on requests for information from a trust or estate

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Estate, trust and will disputes

How we can help

Our lawyers

Our experience

Frequently Asked Questions

Further reading

Did you know?

Visitors

Existing clients

Staff

Estate, trust and will disputes

How we can help

Our lawyers

Our experience

A guide to the Inheritance Act

Frequently Asked Questions

Further reading

Did you know?

Visitors

Existing clients

Staff