Can someone contest a will in the UK? The Inheritance Act 1975 and how to make a will harder to challenge

Most wills are never challenged. But the wills that are challenged tend to be in families where someone feels left out, treated unfairly, or excluded. Knowing who can challenge a will, on what grounds, and what makes a will harder to argue with, is part of writing one that holds up.

This is general information rather than legal advice on any specific dispute. If you are already in the middle of one, the right next step is a contentious-probate specialist.

Who can challenge a will

In England and Wales, several categories of person can bring a claim against an estate under the Inheritance (Provision for Family and Dependants) Act 1975. Broadly, the people the law recognises as potentially entitled to financial provision from an estate are:

• The spouse or civil partner of the deceased
• A former spouse or civil partner who has not remarried, in some circumstances
• A cohabiting partner who lived with the deceased as if married for the two years immediately before death
• A child of the deceased, regardless of age
• A person treated by the deceased as a child of the family (typically stepchildren raised by the deceased)
• Anyone else who was being maintained financially by the deceased immediately before death

A claim under the 1975 Act has to be brought within six months of the grant of probate, with limited exceptions.

The blended-family flashpoint

The single most common contentious-will scenario is a second marriage or blended family. A surviving spouse inherits the estate on the first death; children of the first marriage worry they may never see anything. Wills written without thinking about that dynamic create problems.

Children of a first marriage can bring a claim under the 1975 Act if the will does not make 'reasonable financial provision' for them. What is reasonable depends on their financial circumstances, the size of the estate, and their relationship with the deceased. A young adult who has been financially supported until the death has a much stronger position than an adult with their own established income.

The other grounds for challenging a will

Separately from a 1975 Act claim, a will can be challenged on the grounds that it is not valid in the first place. These claims aim to set the will aside entirely, so that an earlier valid will applies or, if there is none, the intestacy rules apply.

Lack of testamentary capacity

To make a valid will, the person making it must understand what they are doing, the extent of their property, and who might reasonably expect to benefit. They must also not be suffering from any disorder of the mind that prevents them from acting rationally on these matters.

Where a will is made in the later stages of dementia, or under the shadow of a serious illness, capacity becomes the central question. A doctor's contemporaneous note that the person was capable, or a formal capacity assessment, can be decisive.

Lack of knowledge and approval

The person making the will must know its contents and approve them. If a will appears to have been drafted in unusual circumstances, for example by someone who benefits significantly from it, the court may require evidence that the testator actually understood what they were signing.

Undue influence

Undue influence is conduct that overpowers the will of the testator, going beyond legitimate persuasion. The legal bar is high. It is sometimes raised where an isolated, ageing relative leaves their estate to a more recently arrived carer or partner in ways that exclude long-term family.

Lack of proper execution

A will must be signed by the testator in the presence of two independent witnesses, who must also sign in the testator's presence. A witness who benefits under the will (or whose spouse does) cannot validly take the gift. Errors in execution are one of the most common reasons DIY wills fail.

How to make a will harder to challenge

A challenge succeeds where there is something doubtful to attack. A well-drafted will makes those doubts hard to raise.

• Use a solicitor or qualified will writer who can evidence the instruction-taking process, including a note of why specific choices were made.
• Consider a contemporaneous letter of wishes explaining your reasoning. It does not bind the executors but it speaks loudly to a court if a dispute follows.
• Where capacity might be questioned, ask a doctor for a contemporaneous capacity assessment. The 'golden rule' is to have one before a will is made when there is any doubt.
• Be precise about beneficiaries. Use full legal names, dates of birth where useful, and clear gifts. Vague descriptions are an open door to disputes.
• If excluding a likely claimant, address it directly. A clause explaining the reasons can make it harder to argue the omission was an oversight or undue influence.
• For complex family situations, particularly second marriages with children from earlier relationships, consider a trust within the will. A life interest trust can give a surviving spouse the use of an asset for life while preserving the underlying value for children of an earlier marriage.

Trusts inside wills

For blended families, a trust inside a will is often the cleanest solution. The trustees, not the surviving spouse, control the asset. The surviving spouse may receive income, or the right to live in the family home for life, while the underlying value is preserved for the children of the earlier marriage on the survivor's later death.

This is not free, and trusts have their own ongoing administration. But for families that would otherwise face a real risk of disputed inheritance, the trust route is often the difference between a will that holds and a will that ends in court.

When to revisit

Wills age. The circumstances of beneficiaries change. Marriages happen, divorces happen, children are born, and beneficiaries sometimes predecease the testator. A will written ten years ago and not reviewed since is likely to need a fresh look. Reviewing a will is not the same as starting again; in many cases a codicil or a short replacement does the job.

Simply Estate is an estate planning firm. Our team writes wills designed to reflect your wishes and stand up when it matters. Visit our estate planning page to book a free, no-obligation review.