Protecting Your Will From a Challenge

If you are splitting your estate unevenly, cutting someone out, or making a will late in life or while you are ill, there is a fair chance someone will question it after you die. You cannot stop a person bringing a claim. What you can do is make sure the evidence is firmly on your side if they do.

When is a will most likely to be challenged?

Disputes tend to come from a fairly predictable set of situations. If two or more of these apply to you, it is worth taking extra care.

You are leaving your children unequal shares, or leaving one of them out completely.
You are making a big change late in life, especially one that benefits a recent carer, a new partner or one particular relative.
You have a diagnosis that affects your thinking, such as dementia, or you are seriously ill.
You have a blended family, where children from an earlier relationship and a current spouse both expect to inherit.
Someone depends on you financially and you are not providing for them.
You live with a partner you are not married to, or you are separated but not divorced. See wills after separation and divorce.
One person organised the whole thing. They booked the appointment, drove you there, sat in on the meeting, and they also do well out of the will.

What actually works?

Each ground of challenge has a matching precaution. Getting these right at the time is worth far more than anything anyone can piece together afterwards.

Give your instructions yourself, on your own

Nothing damages a will faster than having a beneficiary in the room when instructions are given. It opens the door to arguments about undue influence and fraudulent calumny. Ask to be seen alone, even if only for part of the meeting. If someone insists on staying, that tells you something.

Make sure someone writes it down at the time

A dated note recording what you said, what you were asked, and why you are doing what you are doing is the most valuable document in any later dispute. Courts give real weight to the evidence of the professional who actually met you, especially compared with a medical expert giving an opinion years later who never did.

Get a medical assessment if age or illness is a factor

Where an older or seriously unwell person makes a will, the "golden rule" says a doctor should witness or approve it, satisfy themselves the person is capable, and write down what they found. It is good practice for solicitors rather than a rule of law, and following it does not guarantee the will stands. But the record it leaves behind is hard to argue with.

Get the signing right

Formal mistakes are the easiest thing to avoid. Follow our guide to signing and executing a will, and use independent witnesses. See who can witness a will. A beneficiary or their husband or wife who witnesses your will loses their gift, even though the will itself stays valid.

Explain an uneven split

A separate letter of wishes, kept with the will, lets you say in your own words why you did what you did. It is not legally binding and it will not stop a claim. But it puts your reasoning in front of the court in your own voice instead of leaving people to guess.

Be careful how you word it. A reason that turns out to be untrue can do more harm than saying nothing. In Whittle v Whittle (2022) a will said the testator and his son had "become estranged". There was no evidence of that at all, which helped convince the court the will was the product of someone else's lies.

Do no contest clauses work?

Only up to a point. A no contest clause says a beneficiary who challenges the will loses their gift. That can put off someone who has been left something worth keeping.

It does nothing in two situations. It has no effect on a person who was left nothing at all, because they have nothing to lose. And it cannot block a claim under the Inheritance (Provision for Family and Dependants) Act 1975. That is a right given by statute, and the court can use it whatever your will says.

Should you provide for a dependant to head off a claim?

It is worth thinking about. The 1975 Act lets six groups of people apply to the court for reasonable provision. Spouses and civil partners. Former spouses who have not remarried. Partners of at least two years. Children. Anyone treated as a child of the family. And anyone you were supporting financially.

Leaving a modest but genuine amount to someone in one of those groups is often cheaper and less damaging than leaving nothing and inviting a claim. That said, your wishes still count. In Ilott v The Blue Cross (2017) the Supreme Court restored a modest award to an estranged adult daughter. It also made clear that what the will-maker wanted remains part of what the court weighs up.

What is the single most useful step?

Having the will prepared or checked by a qualified solicitor. It creates the professional record, makes sure the signing is right, and gives the will a strong starting position. Where a will has been prepared by a solicitor and read over to the person making it, courts treat that as strong evidence it says what they wanted.

A qualified solicitor checks every will we produce before it is finalised. If your situation is one of the riskier ones above, book a call and we will go through it properly.

If you want to understand what you are guarding against, the overview of legal challenges to wills sets out each ground. If you are on the other side of one, see how to challenge a will.

This article is for general information and is not legal advice. Are you worried your will may be challenged, or making a will where capacity or pressure could be questioned later? Please get in touch for advice on your own situation.

Sources

Common questions

Can I stop someone challenging my will?

No. Anyone with standing can bring a claim, and no wording in a will can prevent an application under the Inheritance (Provision for Family and Dependants) Act 1975. What you can do is make a challenge very hard to win. Give your instructions on your own. Make sure someone writes down what you said and why at the time. Get a medical assessment if age or illness is a factor. Sign the will properly with independent witnesses. And explain an uneven split in a letter of wishes.

Does a no contest clause work in England and Wales?

Only partly. It can put off a beneficiary who has been left enough to be worth keeping. It does nothing to someone who was left nothing at all, because they have nothing to lose, and it cannot stop a claim for reasonable provision under the Inheritance Act 1975. That is a right given by statute, and the court can use it whatever the will says.

Do I need a doctor to witness my will if I am elderly?

It is not a legal requirement. The golden rule is good practice rather than law. It says that where an older or seriously unwell person makes a will, a doctor should ideally witness or approve it, check they are capable, and write down what they found. Not following it does not make the will invalid, and following it does not guarantee the will stands. But the medical note it produces at the time is very hard to argue with later.

Should I explain in my will why I am leaving someone out?

Usually it is better to put your reasons in a separate letter of wishes kept with the will, rather than in the will itself. Either way, make sure anything you say is accurate. A stated reason that turns out to be untrue can undermine the will rather than support it, because it suggests you were misinformed about the person concerned.

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.

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