Challenges to Wills

Grants of Probate

The executors named in a will should put forward the will for probate by applying for what is known as a grant of probate.

Once a grant of probate is obtained it cannot be revoked unless:

  1. A later will is discovered
  2. The grant was obtained fraudulently.

If a grant of probate has been obtained the grant can only be revoked by formally challenging the will and issuing a claim at Court to do this.

Anyone objecting the grant of probate should apply to the probate registry to enter a ‘caveat’ before the grant is obtained.

Correspondence before Court proceedings.

The courts have an expectation that parties to a claim will try to resolve the claim if possible without involving the Courts.

A protocol has been prepared by the Association of Contentious Trust and Probate Practitioners (ACTAPS) which can be found at:

If a will is to be challenged enquiries should be made with the person that prepared the will and the witnesses to the will. These enquiries can be made by the person intending to challenge the will or an executor/personal representative.

The case of Larke v Nugus detailed the types of questions that should be put to the solicitor or will writer that prepared the will.

Commencing a challenge to a will – Caveats

If the validity of the will is challenged the challenger can enter what is known as a caveat with the probate registry. This must be done before a grant of probate is obtained.

A caveat is a written notice filed with the Principal Probate Registry asserting that a grant of probate should not be issued.

The executors named in a will should put forward the will for probate by applying for a grant of probate.

Once a grant of probate is obtained it cannot be revoked unless:

  1. A later will is discovered
  2. The grant was obtained fraudulently.

For this reason anyone investigating the validity of a will should enter a caveat as soon as possible to prevent a grant of probate being obtained. Issuing proceedings to challenge a will would also prevent a grant of probate being obtained.

If the will is challenged an executor does not have to issue a claim to prove the will. If an executor is unsure whether the will is valid they may request an indemnity for costs from anyone interested in proving the will before issuing a claim.

A Caveat has been lodged. What happens next?

An executor can require the person who entered the Caveat to remove it or cause it to be made final.

Once a caveat is made final a will can only be pronounced and a grant of probate obtained if proceedings are issued at Court to prove the will.

Proceedings can be brought by:

  1. an executor;
  2. the person that entered the caveat;
  3. Anyone sufficiently interested in the estate.

Generally, the burden is on the executors to prove a will is valid if the challenge relates to mental capacity or a lack of understanding of the will being executed. For other types of challenges to wills usually the burden is on the person raising the challenge.

Time Limits for claims.

There is no time limit for probate claims but an inability to adequately respond to a claim due to delay can be an effective defence.

Who can bring a claim to prove a will?

The person bringing the claim must have sufficient interest in the estate. This includes named executors and beneficiaries under the will

A creditor of the deceased does not have sufficient interest to bring the claim.

If a beneficiary or their spouse / civil partner witnessed the will any gifts to them under the will fail. For that reason they will not have sufficient interest to bring a claim.

Why might a will be invalid?

A will can be invalid for a number of reasons. These include:-

1. Want of due execution – the legal formalities for executing the will were not observed.

A will is invalid if it is not in writing and signed in the presence of two or more witnesses. The witnesses also need to sign the will in the presence of the person making the will. In certain circumstances a will can be signed on someone’s behalf if they are unable to sign it themselves.

2. Lack of Capacity – the person making the will did not have the mental capacity to execute the will when they signed it.

A person is assumed to have mental capacity unless it can be shown otherwise. Usually, if there are concerns about mental capacity a detailed investigation of medical records and expert medical opinion is required.

If there were concerns about mental capacity when a will was prepared it is best practice for the solicitor or will writer to have a medical practitioner visit and confirm capacity before the will is executed. If this was done a contemporaneous note will be persuasive evidence.

To validly execute a will the person making the will must understand that they are making a will and the extent of the assets they are giving away. They must also be able to understand the possible claims against their estate and whether they should address them in the will.

The appropriate test is not a question of memory. It is a question of understanding.

3. Undue Influence
Undue influence should not be claimed unless there are reasonable grounds to do so. The burden of proving undue influence is on the person making the allegation.

4. Knowledge and approval.There is a presumption that the person making the will knew and approved the contents of the will.If a person benefitting under the will prepared it, the Court will examine the will and the circumstances in which it was executed. In those circumstances the Court is likely to require to see evidence that the will knew and approved the contents of the will.Positive evidence of knowledge and approval is also required if the person making the will is deaf, dumb or blind.

5. Fraud
For Allegations of fraud are serious and a barrister will not be able to plead a claim of fraud without evidence in support.

6. Sham
The person making the will must intend it to take effect as a will. If there is evidence that they did not intend to make a will, the will may be shown to be invalid.

7. Revocation
Wills can be revoked by marriage/civil partnership or the annulment or dissolution of a marriage/civil partnership. The making of a later valid will or destruction of a will also have the effect of revoking a will.

8. Forfeiture
As a matter of public policy, if there was an unlawful killing of the deceased, the person responsible cannot benefit from their will.

Alternative Dispute Resolution

There are many types of alternative dispute resolution including settlement meetings between the parties and mediation.

Mediation is a process where an independent third party is provided with information and documents about the claim and tries to help the parties reach an agreement on the claim without the need for the Court to determine the claim.

A mediator will not pick a side or decide the claim.

Although mediation is a voluntary process the Courts can penalise parties in costs if they unreasonably refuse to participate in a mediation.

The vast majority of claims are suitable for mediation.

Resolution of a claim by mediation is likely to be much quicker and much cheaper than having a claim determined by the Court.

If agreement cannot be reached at a mediation then the parties can still have the claim determined by the Court.  Negotiations at a mediation cannot be disclosed to the Court when the Court is determining the claim.

Who pays the costs of any claim? 

Generally, speaking the loser pays the winner’s costs although the Court does have a wide discretion on costs.

Usually, the legal costs incurred by an executor / personal representative in making or responding to a claim can be paid out of the estate.  This general rule is very dependent on the facts of the individual case and the stance taken.  For example, an executor defending a challenge to a will where there is obvious strong evidence that the will is invalid may not be permitted to recover the legal costs incurred from the estate.

Offers can be made within any proceedings that may affect liability for costs following a trial.

If no positive defence is raised to a claim to prove a will the Court will not usually order the caveat holder to pay the costs of proving the will.  The Court has a wide discretion on costs and may order the caveat holder to pay costs if they did not have reasonable grounds for challenging the will.

An executor is not bound to propound a testamentary document. If he has any doubts as to its validity, it is reasonable for him to obtain an indemnity or some other security for the costs of the application from those interested in upholding the will. If he fails to prove the will and he has not obtained such security, he is likely to be ordered to pay the costs personally.

What happens to the estate while a will is being challenged?

If something needs to be done with the estate but nobody has authority to do it then an application can be made for a grant of administration while the claim is resolved.

If an administrator is appointed they can then apply for letters of administration to deal with the estate. The administration appointment will end when the proceedings to determine the validity of the will are concluded.