CONTESTING OR CHALLENGING A WILL
The main grounds for contesting or challenging a Will are:
- Where the will was not written, signed and witnessed in accordance with the provisions of Sections 77 and 78 of the Succession Act 1965.
- Where the person who made the will ("the testator") lacked the necessary mental capacity, was under duress or undue influence, or did not know and approve of the contents of the will.
- Where, according to the provisions of Part IX of the Succession Act 1965, the testator did not provide for their spouse's or civil partner's legal right share or where a child of the testator is able to show to a court that the testator failed in their moral duty to make proper provision for them in accordance with the testator's means.
- Where, under the doctrine of estoppel, the person contesting the will can show that they were led by the testator to expect a benefit in the will and that because of this assurance they altered their position or acted to their own detriment.
Where the Will was not written, signed and witnessed in accordance with the provisions of Sections 77 and 78 of the Succession Act 1965.
Section 77 provides that the testator must be over 18 years of age (or have been married) and be of sound disposing mind.
The formalities for the manner in which a Will are set out in Section 78.
The will must be signed by the testator in the presence of two witnesses. These witnesses must sign their names in the presence of the testator.
It should also be noted that Section 82 provides that a witness cannot take a benefit in the will.
The formalities for the manner in which a Will are set out in Section 78.
The will must be signed by the testator in the presence of two witnesses. These witnesses must sign their names in the presence of the testator.
It should also be noted that Section 82 provides that a witness cannot take a benefit in the will.
Where the person who made the Will lacked the necessary mental capacity, was under duress or undue influence, or did not know and approve of the contents of the Will.
This is overlaps somewhat with Section 77 where it says that the person making the will must be of sound disposing mind.
The test for mental capacity is set out in the case of Banks v Goodfellow from 1870.
The test has three parts:
Undue influence applies if the testator’s decision-making capacity was overpowered to such an extent that at the time they executed the testamentary document they were not acting of their own free will.
The test for mental capacity is set out in the case of Banks v Goodfellow from 1870.
The test has three parts:
- The testator must understand that they are making a will and what that means.
- The testator must know the nature and extent of their estate.
- The testator must be able to understand who might have a claim on their estate.
Undue influence applies if the testator’s decision-making capacity was overpowered to such an extent that at the time they executed the testamentary document they were not acting of their own free will.
Where, according to the provisions of Part IX of the Succession Act 1965, the testator did not provide for their spouse's or civil partner's legal right share or where a child of the testator is able to show to a court that the testator failed in their moral duty to make proper provision for them in accordance with the testator's means.
A spouse's rights
Section 111 provides that where a testator leaves a spouse and no children, the spouse is entitled – as of right – to one-half of the estate.
Where a testator leaves a spouse and children, the spouse is entitled to one-third of the estate.
These provisions apply no matter what it says in the will.
If the surviving spouse is provided for in the will, they can, under section 115, choose – or elect – to take either the benefit they are left in the will or their legal right share. This is known as the surviving spouse's "right of election".
Under section 56, the surviving spouse can take – or appropriate – any dwelling (including household chattels) forming part of the deceased's estate in which they were ordinarily resident at the time of the deceased's death towards the satisfaction of their legal right share.
Childrens' rights
Section 117 provides that a where a court is of opinion that the testator has failed in their moral duty to make proper provision for a child in accordance with their means, the court may order that such provision be made out of the estate.
Unlike the provision for a spouse, a child’s right is not automatic, the child must bring their claim before the court for a decision.
It should be noted that "a child" means any son or daughter of the testator, not just a person under the age of eighteen.
Almost always, the courts take the view that unless the child’s claim is frivolous and vexatious that the estate (rather than the child) should pay the costs of a section 117 claim. This removes at least some of the worry for a child who might consider bringing such a claim. However, the position in this regard may change in the future.
Section 111 provides that where a testator leaves a spouse and no children, the spouse is entitled – as of right – to one-half of the estate.
Where a testator leaves a spouse and children, the spouse is entitled to one-third of the estate.
These provisions apply no matter what it says in the will.
If the surviving spouse is provided for in the will, they can, under section 115, choose – or elect – to take either the benefit they are left in the will or their legal right share. This is known as the surviving spouse's "right of election".
Under section 56, the surviving spouse can take – or appropriate – any dwelling (including household chattels) forming part of the deceased's estate in which they were ordinarily resident at the time of the deceased's death towards the satisfaction of their legal right share.
Childrens' rights
Section 117 provides that a where a court is of opinion that the testator has failed in their moral duty to make proper provision for a child in accordance with their means, the court may order that such provision be made out of the estate.
Unlike the provision for a spouse, a child’s right is not automatic, the child must bring their claim before the court for a decision.
It should be noted that "a child" means any son or daughter of the testator, not just a person under the age of eighteen.
Almost always, the courts take the view that unless the child’s claim is frivolous and vexatious that the estate (rather than the child) should pay the costs of a section 117 claim. This removes at least some of the worry for a child who might consider bringing such a claim. However, the position in this regard may change in the future.
Where, under the doctrine of estoppel, the person contesting the will can show that they were led by the testator to expect a benefit in the will and that because of this assurance they altered their position or acted to their own detriment
In equity, “an estoppel” precludes – or “estops” – a person from asserting something contrary to what is implied by their previous actions or statements.
There are usually three legs to an estoppel claim:
The following is an example based on facts similar to cases Thomas W Enright Solicitors has been involved in:
A bachelor farmer promises his niece that he will leave her his farm when he dies. In reliance on this promise, the niece works the farm along with her uncle without receiving proper recompense during the uncle's life and foregoing other opportunities. The farmer dies but leaves the farm to another relation in his will. In such circumstances the niece has a good claim against her uncle’s estate.
There are usually three legs to an estoppel claim:
- A representation or promise made by the testator to the claimant.
- Reliance on the promise by the claimant.
- Detriment suffered by the claimant as a result of their reliance on the promise.
The following is an example based on facts similar to cases Thomas W Enright Solicitors has been involved in:
A bachelor farmer promises his niece that he will leave her his farm when he dies. In reliance on this promise, the niece works the farm along with her uncle without receiving proper recompense during the uncle's life and foregoing other opportunities. The farmer dies but leaves the farm to another relation in his will. In such circumstances the niece has a good claim against her uncle’s estate.
What are the time limits for contesting or challenging a will?
In all probate and equity actions very strict time limits apply so it is important that legal advice is sought as soon as possible in respect of any potential claim.
Cause of action |
Time period |
Spouse's legal right share (section 111) |
Within 6 years of date of death (or end of right of election period, if right of election applies) |
Spouse's right of election (section 115) |
The later of: 6 months of receipt of notification or 1 year from date of death |
Spouse's right of appropriation of residence (section 56) |
The later of: 6 months of receipt of notification or 1 year from date of death |
Section 117 applications |
Within 6 months of the issue of the Grant of Probate |
Estoppel claims |
Within 2 years of date of death |
Frequently asked questions
Can the executor of a will contest the will?
There is no legal bar on an executor contesting a will but in circumstances where an executor seeks to challenge the validity of a will they would need to renounce their executorship.
Can you challenge a will after probate?
Yes, you can challenge a will after probate. In some circumstances, such as in section 117 applications, the claimant can only bring the application after the Grant of Probate issues. In other circumstances, where, for example, a person is alleging the will was not properly executed or where there is a claim of fraud or undue influence then it is, from a practical point of view, always better to bring the claim prior to the issue of the grant because the grant, once it issues, enables the executor to deal with the estate and dispose of the assets. Usually, if you have a potential claim, your solicitor will cause a caveat to issue from the probate office which will prevent a grant issuing and allow you time to bring your claim. If the grant has already issued, an application can be made to the court to have it revoked.
Who has standing to challenge a will?
A person's standing to challenge a will depends on the nature of their cause of action. A spouse will have an automatic entitlement under section 111 and the related sections of Part IX of the Succession Act 1965. Children have standing to bring a claim under section 117. While claims of spouses and children have, accordingly, a strong statutory basis, the fact is that anyone who can establish that they have lost out as a result of there being some issue with a will is entitled to bring a claim. One does not have to have been in any particular degree of relationship to a deceased to take, for example, an action alleging undue influence. Provided the claimant can show they have lost out as a result of the wrong alleged – or, say, in the case of an estoppel, the breach of the promise made – they will have a valid cause of action.
What does it cost to contest a will?
The costs of contesting a will depend on various matters including the value of the potential claim, the size of the estate. the nature and complexity of the issues involved, the number and importance of the documents that need to be examined and the number of hours involved in progressing the case.
Usually, in cases taken by children under section 117 of the Succession Act 1965, there is an expectation that a claimant has "a free shot" at the estate. This is because the costs in such applications tend to be awarded against the estate even if the claimant loses their case, unless the claim was deemed to be frivolous or vexatious. The court expressed the view in the case of Vella v Morelli in 1968 that the fear of an award for costs should not be a deterrent to a claimant bringing forward their case.
Usually, in cases taken by children under section 117 of the Succession Act 1965, there is an expectation that a claimant has "a free shot" at the estate. This is because the costs in such applications tend to be awarded against the estate even if the claimant loses their case, unless the claim was deemed to be frivolous or vexatious. The court expressed the view in the case of Vella v Morelli in 1968 that the fear of an award for costs should not be a deterrent to a claimant bringing forward their case.
How we can help
At Thomas W Enright Solicitors we have a particular focus on probate litigation and have successfully conducted many cases before the courts on behalf of clients (spouses, children, nephews, nieces and others) who believed themselves insufficiently provided for out of the estate of a deceased. We also have considerable experience acting on behalf of executors in the defence of such claims.
If you wish to be advised about bringing or defending a claim against an estate we are happy to help.
If you wish to be advised about bringing or defending a claim against an estate we are happy to help.