How to Challenge a Will for Improper Execution

A will must meet strict formal legal requirements to be valid in England and Wales. If a will has not been properly executed according to these requirements, it may be possible to challenge its validity in court. A challenge on this ground focuses on whether the document was signed and witnessed correctly, not on the fairness of its terms or the intentions of the deceased. This article explains the legal basis for challenging a will for improper execution, when such challenges are appropriate, what evidence is needed, the legal process, key time limits, potential outcomes, and common questions that arise in these disputes.

What Constitutes “Improper Execution”?

Under Section 9 of the Wills Act 1837, a will is valid only if it complies with a number of formalities:

• The will must be in writing and signed by the testator (or by someone else in their presence and at their direction).
• The testator must intend that their signature gives effect to the will.
• The signature must be made or acknowledged in the presence of at least two witnesses present at the same time.
• Each witness must either attest and sign the will or acknowledge their signature in the presence of the testator. 

If any of these requirements are not met, the will may be invalid for improper execution. This ground is also referred to as want of due execution or lack of due execution. 

Why Is Proper Execution Required?

The formal execution requirements exist to protect the testator's free will and to prevent fraud or forgery. If a will appears to be executed correctly on its face-signed and witnessed as required-there is a presumption of due execution, meaning the law assumes the formalities were complied with. A successful challenge must rebut this presumption with clear evidence. 

Common Examples of Improper Execution

A will may be open to challenge for improper execution where:

• The testator did not sign the will at all.
• The testator's signature was not made in the presence of two witnesses at the same time.
• The witnesses did not sign in the presence of the testator.
• The will was signed or attested in a manner inconsistent with the statutory requirements (for example, improper use of substitutes for signing).
• A witness was a beneficiary or closely connected to a beneficiary and was wrongly permitted to act as witness. 

Even small errors, such as a witness signing before the testator or witnesses not present together, can render a will invalid. 

Who Can Challenge a Will for Improper Execution?

To challenge a will on this ground, a person must have a sufficient interest in the estate. This typically includes:

• Individuals named as beneficiaries in a previous will.
• People who may benefit under the intestacy rules if there is no valid will.
• Potential beneficiaries who would be disadvantaged or excluded if the disputed will is upheld. 

Simply being disappointed by the terms of a will is not enough; the challenger must demonstrate a legitimate legal interest in the estate.

Evidence Required to Support the Challenge

Because of the presumption of due execution, a claimant must produce reliable evidence that the formal requirements were not met. Useful evidence may include:

• Witness statements from people present or aware of how the will was signed.
• The original will and related documents showing how and when it was executed.
• Correspondence or notes from the solicitor or will drafter about the execution ceremony.
• Evidence that a document was purportedly signed on behalf of the testator without proper direction or presence. 

If fraud or forgery is suspected, expert analysis such as forensic handwriting reports may form part of the evidence.

Steps to Challenge a Will for Improper Execution

1. Seek Legal Advice Early

A solicitor experienced in contentious probate and estate disputes can assess whether improper execution is a viable ground and help gather the necessary evidence.

2. Consider Lodging a Caveat

If probate has not yet been granted, a caveat can be lodged with the Probate Registry. A caveat prevents a grant of probate being issued and preserves the claimant's ability to raise a challenge. It can buy time to investigate the circumstances of execution.

3. Issue Court Proceedings

A claim to challenge the will's validity is typically issued in the High Court (Chancery Division). The claim must set out the factual basis alleging improper execution and the evidence that supports it.

4. Disclosure and Witness Evidence

Both sides exchange relevant evidence. Witness testimony and documents are scrutinised to determine whether the statutory formalities were truly met.

5. Hearing and Judgment

At the court hearing, a judge evaluates whether the will was properly executed. If the formal execution requirements are found not to be satisfied, the will can be declared invalid. 

Time Limits and Procedural Considerations

There is no strict statutory deadline for challenging a will's execution once probate has been granted, but claimants are expected to act promptly after becoming aware of the will. A typical time frame for validity challenges is within six months from the date probate is granted. Delaying may make evidence harder to obtain and weaken a claim. Early action improves the prospects of preserving relevant witness evidence and documents. 

Possible Outcomes of a Successful Challenge

If the court rules that a will was improperly executed:

• The will may be declared invalid in its entirety.
• An earlier valid will may be admitted to probate instead.
• If no earlier valid will exists, the estate may be distributed under the intestacy rules. 

Invalidation due to improper execution means that the estate is treated as if the flawed will never existed.

Risks and Practical Considerations

Costs and Risks

Challenging a will can be expensive and complex. Legal fees, court costs, expert reports, and the time involved can be substantial. If a challenge fails, the claimant may be responsible for their own costs and possibly those of other parties.

Family and Emotional Strain

Will challenges often involve family disputes. This can create emotional and relational strain. It is important to weigh the potential benefits against the stress and uncertainty of litigation.

Evidence Challenges

Because formal execution issues often involve events that took place before the testator's death, evidence can be difficult to obtain. Independent witness accounts and professional records are especially valuable.

Common Questions

What happens if a witness was a beneficiary?
If a beneficiary or their spouse acted as a witness, the gift to that beneficiary may be invalidated under Section 15 of the Wills Act 1837, but the will as a whole may still stand if other formalities are satisfied. 

Can a will be challenged after probate is granted?
Yes. Although timing is critical and evidence less accessible after probate, a challenge to execution can be brought after probate has been granted.

Is an informal will ever valid?
In England and Wales, informal or “home‑made” wills that do not comply with statutory requirements are generally invalid unless specific exceptions apply, such as privileged wills for certain service personnel. 

Key Takeaways

A will must fulfil strict formal requirements to be valid under English law. Improper execution, such as failure to sign correctly or lack of proper witnessing, can render a will invalid and open to challenge. Challenging improper execution requires clear evidence to rebut the legal presumption that a properly executed will is valid. The process involves legal advice, evidence gathering, possible caveat lodgement, court proceedings and a hearing. Successful challenges can restore an earlier valid will or trigger intestacy rules. However, such claims involve cost, evidence demands and potential emotional strain. Acting promptly and with professional guidance is essential in these disputes.