Typically there three main ways in which the passing of an inheritance can be challenged
and we can arrange help to make the claim or to defend against it:
The Will was invalid because it was not made correctly, or
It was a valid Will, but did not provide for potential beneficiaries appropriately,
The person had made a promise in their lifetime which they didn’t honour in their
When making a Will there are a variety of formalities that need to be observed, such
as following the correct signing and witnessing procedures. The person making the
Will must have mental capacity (as judged by the “Banks v Goodfellow” test) and must
not be subject to undue pressure or influence. If it seems a Will might be invalid
then anyone can lodge a caveat at the probate registry, to delay any grant of probate
until the disputed Will has been checked properly.
Claiming for provision from an estate
A Will could be legally valid but still not make appropriate provision for key people.
This is governed by the Inheritance (Provision for Family and Dependants) Act 1975.
Not just anyone can claim; it is limited to those specified in the law, which are
Spouse / civil partner
Former spouse / civil partner
Person living as spouse / civil partner
Child of the family
Person treated as child of the family
Person being maintained by the deceased
Just because someone is permitted to make a claim, it does not mean that they will
be successful. Indeed usually a judge is not keen to alter the provisions of a Will.
Each case is treated on its own merits and takes into account factors such as the
size of the estate, the financial circumstances of the claimant and also those of
the existing beneficiaries. It is highly unlikely that a claimant would be given
the whole estate; typically if a change is made then it is just to give them a share.
The case of Ilott v Mitson went to the Court of Appeal in 2015 and some have said
the result means there is no point in cutting out a child from your Will. However,
that is wrong. In practice, even after the revised ruling the daughter received only
a portion of the estate, with the majority still going to the testator’s intended
charities. The case emphasised that in each situation the judge looks at the particular
circumstances and makes an individual ruling.
Occasionally someone promises to make a gift in their Will, but then does not actually
do it. If that broken promise makes a significant impact to someone then they make
be able to make a claim of “proprietory estoppel” to enforce the promise. It’s not
easy to make a successful claim, because you have to be able to prove that a promise
was made, that you relied on that promise and that you now suffer a loss because
of the breach of promise.
Avoiding a Will being Challenged
If you are thinking of leaving someone out of a Will then take professional advice,
so that you can understand the likelihood of your wishes being respected. However,
you might be more certain of having your wishes respected if you have placed your
assets into a Lifetime Trust. InHouse Wills can give you personal guidance for your
Of course, it is also important to ensure that the Will is made properly. Having
a specialist Will writer involved means that the proper procedures will be followed,
minimising the chances of a Will being ruled as invalid. There will also be notes
kept, to demonstrate to the court that you knew what you were doing and were properly
If you find yourself acting as executor to a Will that someone else is challenging,
then our specialist colleagues can deal with it for you. They can advise as to whether
the claim has any merit, perhaps negotiate with the claimant to reach a settlement
agreeable to everyone, or if really necessary they can defend the Will in court if
it goes that far.
Challenging A Will
Anyone can challenge the validity of a Will, but only certain people can ask to be
given more from an estate (and even then, a judge might disagree)