Contest a will on the grounds of invalid procedure

If you would like to contest a will on the grounds of invalid procedure then call our free helpline on 0333 888 0409 for a case assessment or send us an email.

To contest a will on the grounds of invalid procedure it is necessary to consider the Wills Act 1837, an archaic piece of law that is long overdue for reform. For a will to be valid it must be properly drafted and executed in accordance with that Act.

Handwritten wills and printed wills are both acceptable. Most wills these days are written on paper but in fact a will can be written on any material provided the other requirements are met and it can be produced to the probate registry.

Another requirement is that the will must be signed by the testator. However the Wills Act does not define what is meant by ‘signed’. The courts have even accepted a thumb print from the testator as a valid ‘signature’.

Valid procedure

The main requirements for a will to be validly prepared are:

  • The testator must be aged 18 or over;
  • The will must be in writing and signed by the testator. The testator can direct someone to sign the will on their behalf if they are unable to. However the testator must be present and direct the person to do so;
  • The testator must have the intention that their signature is to give effect to the will; and
  • The signature is witnessed by two independent witnesses and each witness signs the will.

If it appears these requirements have been complied with it raises the legal presumption that the will has been validly executed, unless evidence to the contrary arises. The presumption strengthens if the will has been drafted by a solicitor who has overseen its execution.

However, if the formalities of the Wills Act have not been complied with then you can contest the will on the grounds of invalid procedure.

Homemade wills

It is more common for people to contest a will on the grounds of invalid procedure when the will is homemade or drafted by an unqualified ‘will writer’.

Invalid wills

If a will is successfully challenged on the grounds of invalid procedure then it will not have legal effect.

If an earlier, valid will is in existence then the terms of this will shall apply. If there is no previous will the testator will be deemed to have died intestate and the estate would be distributed in accordance with the intestacy rules.

How we can help

Our Legal 500 recommended solicitors specialise in contesting wills and deal with claims from all over the country. We can often work on a no win, no fee basis and are happy to consider any case for no win, no fee funding.

To find out more about whether you can contest a will on the grounds of invalid procedure call our free legal helpline on 0333 888 0409 or email us at info@contesting-wills.co.uk

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We are proud of our track record of success in the complex area of contesting wills. We have achieved successful outcomes in a vast range of scenarios. If you take a look at our case studies you will see the breadth of our experience and our numerous successes. You may find a case that directly mirrors your own, but if not, the chances are that someone in our team will have dealt with a similar case.

Frequently Asked Questions

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Some of the questions our specialist contesting wills solicitors are most frequently asked. Please feel free to contact us to ask any questions related to your case, we also offer a free 30 minute consultation.

A mirror will reflects the contents of another will made at the same time. They are commonly made by spouses (and sometimes unmarried couples) who wish to leave their estate to the other, with the combined estates then being left to named beneficiaries (generally children) on the second death. The terms of each will ‘mirrors’ the other, but the survivor is free to make a new will if they choose to do so.

Mirror wills should not however be confused with mutual wills. While they are similar in that each will reflects the contents of the other, a mutual will goes one important step further. It creates a legally binding agreement that the terms of the wills must not be changed when one of the will makers dies. Mutual wills are effectively an enforceable contract, with the surviving will maker being legally bound not to alter or revoke their will.

Mutual wills are far less common than mirror wills. While they provide certainty after death, they do not allow flexibility or testamentary freedom once the first person has died. They are also open to challenge upon grounds such as undue influence.

The most common grounds relied upon to contest a will are as follows:

Failure to comply with the Wills Act

A will must comply with all the formalities of the Wills Act. This means it must be in writing, and it must be signed by the deceased in the presence of two witnesses who signed the Will in the deceased’s presence.

Lack of Testamentary Capacity

The maker of a Will must have sufficient mental capacity (known as testamentary capacity). The law requires that they understood:

  1. That they were making a will and that it had the effect of carrying out their wishes upon their death;
  2. The extent of their property and what it consisted of; and
  3. The claims on the estate which they ought to give effect to.

Undue Influence

If the deceased had pressure placed upon them to make a will or change the terms of an existing will, then it may be legally invalid. The signs of undue influence include:

  1. Last minute changes to a Will
  2. Family members being disinherited and people who were only close to the deceased for a short time being named as beneficiaries
  3. A handmade Will that was drafted without the use of a solicitor
  4. A deceased who was vulnerable
  5. A deceased who stopped contact with loved ones prior to their death

Lack of Knowledge and Approval

The maker of the will must have had 'knowledge and approval' of the will's contents for it to be legally valid.

Forgery or Fraud

This occurs where a will has been falsified in its entirety, or parts of it have been altered or forged in some way. It includes cases where the deceased’s signature on the will is not genuine.

Fraudulent calumny

This involves beneficiaries who poison the mind of the person who made the will in order to persuade them to disinherit other potential beneficiaries.

Alternatives to challenging the validity of a Will

Aside from disputing the legal validity of a Will, you could also consider making an Inheritance Act claim or pursuing an action for proprietary estoppel if a promise has been broken.

It is difficult to assess what it will cost to contest a will at the outset of a case. There are so many different factors that impact legal fees, including the complexity of a case and the steps that will be required to obtain the evidence to support it. The conduct of your opponent can also have a great bearing.

Because legal costs are usually calculated on an hourly basis, the longer a case goes on, the more work that is required, and the greater the costs will be.

Another key factor is the seniority of the solicitor who deals with your case. The more senior the lawyer, the higher their hourly rate will be.

We have a large team of specialists who deal exclusively with this area of work. This means that we can offer specialist representation at all levels. Our team of qualified lawyers includes

We will be happy to discuss which member of our team will be best suited to your case and provide details of their hourly rate.

Because we specialise in contested wills, we trust our own judgment and are therefore willing to work No Win, No Fee basis. Not all cases are immediately suitable for No Win, No Fee funding, of course. We can only offer this funding scheme where the prospects of success are good. Sometimes this will be clear from the outset and an immediate decision can be made. Other cases might not be quite so clear at the outset, and investigations will need to be carried out. This could include:

  • Obtaining the deceased’s medical records;
  • Speaking to the witnesses of the will;
  • Obtaining will preparation file; and
  • Requesting a statement’ from the solicitors who drafted the will.

Once these investigations have been carried out we will be in a better position to make an informed decision on whether No Win, No Fee funding can be offered. We may be able to carry out that investigatory work for a fixed fee.

We are also able to deal with cases on a deferred fees basis, where you are guaranteed to receive monies from an estate that will be sufficient to meet the legal costs.

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If you would like to discover more about taking part in this first-of-its-kind series, click here or send us an email.