Most wills are never challenged. But when one is, it gets messy. The estate can sit frozen for years, legal costs eat into whatever was left, and families often stop speaking. This guide covers when a will can be challenged in England and Wales, the grounds people use, and what to do if you are on either side of it.
What are the two kinds of challenge?
People use the phrase "challenging a will" to mean two completely different things. Mixing them up is the most common mistake, so it is worth being clear from the start.
- Saying the will is invalid. You argue it should never have counted as a will at all. Maybe the person was not mentally capable. Maybe they did not understand what they were signing, or someone bullied them into it, or lied to them about a family member. Maybe it was not signed properly. If you win, the will is thrown out.
- Accepting the will but asking for more. Under the Inheritance (Provision for Family and Dependants) Act 1975, some family members and dependants can ask the court for a share even though the will is perfectly valid. The will stands. The court just moves some of the money around.
The second route does not accuse anyone of anything. It asks one question: did the will make reasonable financial provision for this particular person? You can run both at the same time, but they are argued separately.
What are the grounds for saying a will is invalid?
In England and Wales you can leave your money to whoever you like. A will is not invalid because it is unfair, or unkind, or leaves out someone obvious. It only fails if one of these applies.
| Ground | The claim in one line | Who has to prove it |
|---|---|---|
| Testamentary capacity | They were not mentally capable of making a will | The person putting the will forward |
| Knowledge and approval | They did not understand or approve what the will said | The person putting the will forward |
| Undue influence | They were coerced into making it | The person making the accusation |
| Fraudulent calumny | Someone poisoned their mind with lies about a beneficiary | The person making the accusation |
| Incorrect execution | It was not signed and witnessed the way the law requires | The person putting the will forward |
Who has to prove what matters a lot in practice. For capacity, knowledge and approval, and correct signing, the person putting the will forward has to satisfy the court. For undue influence and fraudulent calumny you are accusing someone of serious misconduct, and the courts want solid evidence before they will find it.
Who can claim reasonable provision under the 1975 Act?
A separate group of people can ask the court for money from the estate even when the will is perfectly valid. That group covers spouses and civil partners, and former spouses who have not remarried. It also covers partners who lived with the deceased for at least two years, children, anyone treated as a child of the family, and anyone the deceased was supporting financially.
How much they can ask for is not the same for everyone. A surviving spouse or civil partner gets what is reasonable in the circumstances, whether or not they need it to live on. Everyone else is limited to what is reasonable for their maintenance. Our guide to Inheritance Act 1975 claims goes through both standards and the six month deadline.
What happens if a will is set aside?
Winning does not mean you inherit. The estate falls back to whatever came before, which is one of two things.
- The previous will, if there is one. An earlier valid will takes over. That might leave you no better off than the one you just spent money fighting.
- The intestacy rules, if there is not. Where the invalid will was the only one, the estate passes under a fixed order set by Parliament. See our guide to dying without a will.
So find out what the earlier position was before you start. A challenge that succeeds and still leaves you worse off is an expensive way to make a point.
How likely is a challenge to succeed?
Less likely than most people think. Courts start from a strong position in favour of a will that was drawn up properly and signed correctly. They are also aware that if wills could be unpicked easily after death, the freedom to leave your money where you want would not count for much.
Undue influence shows this clearly. In Rea v Rea (2024) the Court of Appeal threw out a trial judge's finding of undue influence. The circumstances have to show that coercion was more likely than any other explanation. Being merely consistent with coercion is not enough. Suspicion, however genuine, does not win a case.
What does it cost and who pays?
Contested probate is expensive. The normal rule is the same as in any other court case: the loser pays the winner's legal costs on top of their own. There are two long standing exceptions in probate disputes, both set out in Spiers v English (1907) and still used today.
- Where the will-maker caused the problem. Say they left their affairs in a mess. If the person who made the will, or those entitled to the residue, were really the cause of the dispute, the losing side's costs may come out of the estate.
- Where there was good reason to investigate. If there was genuine cause to look into the will, the court may leave each side to pay their own costs.
Do not treat these as a safety net. Courts have deliberately narrowed the first one, because paying a loser's costs out of the estate encourages weak claims. Assume you are at risk on costs unless a specialist tells you otherwise.
Where should you go next?
There are two routes through this section, depending on which side of the problem you are on.
- You are making a will and worried about a challenge. Read protecting your will from a challenge. It covers the warning signs and the practical steps that make a will hard to attack.
- You think a will is wrong and want to challenge it. Read how to challenge a will. It covers caveats, evidence, deadlines and how to find the right kind of solicitor.
At Make a Will, a qualified solicitor checks every will before it is finalised. That is the single most useful safeguard against most of the grounds above. If your situation is complicated, book a call with our team.
This article is for general information and is not legal advice. Make a Will does not act in contested probate disputes. If you are involved in a dispute about a will, take advice from a contentious probate solicitor about your own situation. You can get in touch if you want to talk it through first.
Sources
- Wills Act 1837, section 9 (signing and attestation) on legislation.gov.uk
- Inheritance (Provision for Family and Dependants) Act 1975 on legislation.gov.uk
- Rea v Rea [2024] EWCA Civ 169 on Find Case Law, The National Archives
- Kostic v Chaplin (costs) [2007] EWHC 2909 (Ch), quoting Spiers v English [1907] P 122, on BAILII
Common questions
Can you challenge a will after probate has been granted?
Yes, but it gets much harder. Once probate is granted the executors can start paying the estate out, and getting money back from people who have already spent it is difficult and expensive. If you are thinking about a challenge, entering a caveat before the grant is issued is what protects your position. A claim under the Inheritance Act 1975 has its own six month deadline, which runs from the date of the grant.
How long do you have to contest a will?
It depends on the type of claim. There is no fixed deadline for arguing that a will is invalid, but waiting is risky because the estate may be paid out in the meantime. A claim for reasonable provision under the Inheritance Act 1975 has to be brought within six months of the grant of representation, unless the court gives permission for a late claim. An application to correct a clerical error in a will has the same six month deadline.
Do you need a solicitor to contest a will?
You are not required to have one, but these cases are technical and the costs risk is real, so they are rarely suitable to run yourself. Look for a contentious probate solicitor rather than a general private client firm. You can search by area of work on the Law Society Find a Solicitor service.
What happens to the estate if a will is declared invalid?
The estate passes under the last valid will instead. If there is no earlier will, it passes under the intestacy rules, which set a fixed order of who inherits. Setting a will aside does not mean the person who challenged it inherits, so it is worth checking what the earlier position would be before you start.
Oliver Asha
Solicitor · TEP · Founder of Make a Will
Oliver is a Solicitor (SRA number 372772) and a Trust and Estate Practitioner (TEP). He qualified in 2006 and he is founder at Make a Will, Make a Will Online, Digilegal Trustees and Capacity Vault. It is his mission to bring proper, solicitor-checked wills within reach of every family. He personally drafts and oversees the review of many of the guides on this site.
Verify Oliver’s credentials: Law Society · SRA register · STEP directory
Further Reading
- Stop a Probate Application - GOV.UK How to enter a caveat if you want to challenge a will
- Find a Solicitor - The Law Society Search for a solicitor who specialises in contentious probate
- Inheritance (Provision for Family and Dependants) Act 1975 - legislation.gov.uk The Act that lets family and dependants claim reasonable provision
- Wills Act 1837, section 9 - legislation.gov.uk The signing and witnessing rules a will must satisfy