When a will is challenged

Estate disputes have risen in many jurisdictions, driven by more complex family structures, greater property values, and more second marriages.

They are also among the most damaging forms of litigation, because the parties are related to each other and the relationships rarely survive.

Not legal advice. Grounds and procedures differ substantially by jurisdiction.

The common grounds for challenge

Lack of testamentary capacity. The testator did not understand what they were doing — the nature of making a will, the extent of their property, or the claims of those they might be expected to provide for.

Most commonly raised where a will was made during illness, particularly with cognitive decline.

Undue influence. The will reflects someone else's wishes rather than the testator's, through pressure that overbore their free will.

Difficult to prove in many jurisdictions, requiring more than opportunity and suspicion. Typical circumstances: a person who became isolated and dependent on one beneficiary, a will made shortly before death, and a sudden change favouring the person who arranged it.

Want of knowledge and approval. The testator did not know or approve the contents.

Formal invalidity. Witnessing requirements not met, or the document not properly executed.

Fraud or forgery.

Revocation. A later will exists, or the will was revoked by marriage or by destruction.

Family provision claims

Distinct from challenging validity, and increasingly the more common route in jurisdictions that permit them.

These do not say the will is invalid. They say that it fails to make reasonable provision for someone the law considers entitled to it.

Who may claim differs by jurisdiction and typically includes spouses, former spouses who have not remarried, children, and people who were financially maintained by the deceased.

Courts consider the applicant's needs and resources, the size of the estate, the obligations the deceased had, and the conduct of the parties.

The practical consequence: in these jurisdictions, testamentary freedom is qualified. A will disinheriting a dependent child is vulnerable regardless of how clearly it was drafted.

Forced heirship systems

In many civil law countries, a defined portion of the estate is reserved for children and sometimes a spouse, and cannot be given away.

There is no need to challenge a will in these systems — the reserved portion is a legal entitlement.

Cross-border estates create genuine complexity here, since assets in a forced heirship country may be subject to those rules even where the will was made elsewhere.

The cost

Estate litigation is expensive. Costs frequently run into substantial sums, sometimes exceeding the value in dispute.

Costs may be paid from the estate in some circumstances, which means everyone loses, or may be ordered against a losing party.

Cases can take years.

And relationships do not recover. This is worth weighing against whatever is being fought over.

Mediation

Available in most jurisdictions and considerably cheaper and faster than litigation.

A large proportion of estate disputes settle, frequently at mediation, and frequently on terms that could have been reached at the outset.

Courts in several jurisdictions expect parties to have attempted mediation and may penalise unreasonable refusal in costs.

If you are in a dispute, propose it early. The main obstacle is usually one party's belief that they will win outright, which is generally an overestimate.

How to reduce the risk when making a will

Use a solicitor. Professionally drafted wills are challenged less often and defended more successfully. The solicitor's file, attendance notes and assessment of capacity are evidence.

Get a capacity assessment where there is any doubt — advanced age, illness, or a significant change in provisions. In some jurisdictions this is standard practice, with a doctor assessing and witnessing.

Explain unequal provision in a letter. Not in the will, which becomes public, but in a separate letter kept with it.

Set out the reasoning: one child received help with a house deposit, another provided years of care, a third is estranged for reasons you state.

This does two things: it provides evidence of your reasoning if the will is challenged, and it prevents beneficiaries from constructing their own explanation, which is usually worse than the real one.

Address the people with potential claims. In jurisdictions with family provision legislation, consider whether leaving something reduces the risk of a claim more than leaving nothing.

Avoid the appearance of influence. If one beneficiary arranges the appointment, attends the meeting and takes the instructions, that is exactly the pattern that supports an undue influence claim.

The testator should see the solicitor alone.

Do not leave it late. A will made in hospital days before death, changing previous arrangements, is the most challengeable document there is.

Tell people. Surprise is a major driver of disputes. Adult children who know in advance what to expect are far less likely to litigate than those who discover it at the reading.

This conversation is difficult and it is considerably less difficult than the alternative.

If you are considering a challenge

Get advice early, since time limits apply and are frequently short, particularly for family provision claims.

Be realistic about merits and about cost. Ask specifically what the likely costs are and what happens if you lose.

Consider what you actually want. Frequently the underlying grievance is about recognition rather than money, and litigation is a poor instrument for obtaining it.

Try mediation first.

This is general information, not legal advice. Grounds for challenge, family provision rules and time limits differ substantially by jurisdiction and are frequently short. Seek advice promptly.