- Unfairness is not a ground. The grounds are formal invalidity, incapacity, undue influence, lack of knowledge and approval, and fraud.
- Dependant support is a separate claim that does not attack the will’s validity at all.
- Only someone with a financial interest in the outcome can challenge.
- Estate litigation is expensive, and the assumption that the estate pays everyone’s costs is outdated.
The grounds
Improper execution. The formal requirements were not met, not signed properly, or not witnessed by two people present at the same time.
Lack of testamentary capacity. The testator did not meet the legal test at the time the will was made.
Undue influence. The testator’s volition was overborne by coercion. Persuasion, even persistent persuasion, is not enough.
Lack of knowledge and approval. The testator did not know and approve the contents. Usually raised alongside suspicious circumstances.
Fraud or forgery. Self-explanatory, and rarer than people assume.
What is not a ground: that the will is unfair, that it treats children unequally, or that it departs from what the deceased once said they would do.
Dependant support, which is different
A dependant support claim does not attack the will. It accepts the will and asks the court to order support from the estate for someone the deceased was supporting or had a legal obligation to support.
This is the route for a common-law partner left out of a will, and for a dependent adult child.
It has its own limitation period running from the grant of the certificate, and it is short. Missing it is one of the more common ways a legitimate claim is lost.
Suspicious circumstances
Normally, a properly executed will is presumed valid and the challenger bears the burden of displacing that.
Where suspicious circumstances are shown, the burden can shift back to the person propounding the will to prove capacity and knowledge and approval.
Circumstances that attract scrutiny include a major beneficiary arranging the will or instructing the lawyer, a significant change from a previous will made shortly before death, the testator being frail or isolated, and a will prepared without independent legal advice.
Establishing suspicious circumstances is frequently the strategic objective early in a challenge, because the shift in burden changes the case substantially.
How a challenge proceeds
A person with a financial interest may file a notice of objection, which prevents a certificate issuing without notice to them.
The court then directs how the matter proceeds. Documentary evidence is central: the drafting lawyer’s file, medical records, and evidence about the testator’s circumstances at the relevant time.
The drafting solicitor’s notes are usually the most important single document, which is why careful file notes matter so much when the will is made.
Cost and the family
Two realities worth stating directly.
First, costs. The old assumption that estate litigation costs come out of the estate has narrowed considerably. Courts now more often apply ordinary costs principles, meaning an unsuccessful challenger can be ordered to pay the other side’s costs personally. A speculative challenge is a genuine financial risk.
Second, the estate is frozen while the dispute continues. Distribution waits. Where the main asset is a house, it may sit unsold, incurring costs, for the duration.
Mediation resolves a high proportion of estate disputes, and it is worth attempting early rather than after costs have accumulated on both sides.
Common questions
Can I challenge because I was left less than my sibling?
Unequal treatment is not itself a ground. It may be evidence supporting another ground, but it is not one on its own.
How long do I have?
It depends on the claim. Dependant support has a specific and short limitation period tied to the certificate; other claims have their own timelines. Delay is the enemy of every one of them.
Does a no-contest clause prevent a challenge?
Such clauses can have effect but are construed narrowly, and they generally cannot bar a dependant support claim.
Who pays for the litigation?
Not automatically the estate. Costs increasingly follow the ordinary rules, and an unsuccessful party may bear their own and part of the other side’s.
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