How to Challenge a Will for Improper Execution

If a loved one has died and left a will, that document must meet strict legal formalities to be valid in England and Wales. One of the most common and objectively verifiable grounds to challenge a will is that it was improperly executed - meaning it did not comply with the formal requirements set out in law. This type of claim focuses not on the terms of the will itself, but on whether the will was signed and witnessed correctly. A will that fails this test can be invalidated, which may lead the estate to be administered under an earlier valid will or the intestacy rules.

This article explains what “improper execution” means, how the courts assess challenges on these grounds, practical steps to bring a claim, time limits and procedural considerations, risks involved, and answers common questions.

What Improper Execution Means

Under section 9 of the Wills Act 1837, a will only becomes legally effective if it satisfies certain formal requirements. Failure to meet any of these requirements means the will may be invalid for want of due execution - a technical term used to describe improper execution.

The formal requirements are:

• The will must be in writing.
• It must be signed by the testator (the person making the will), or by someone else in the testator's presence and at their direction.
• The signing by the testator must be made or acknowledged in the presence of at least two independent witnesses present at the same time.
• Each witness must sign or attest the will in the presence of the testator.
• Witnesses must be adults and should not benefit under the will (or be spouses/civil partners of beneficiaries).

There is a legal presumption of due execution - meaning a will that appears to comply on its face is presumed valid unless evidence shows otherwise. To overturn that presumption, a challenger must produce credible evidence that one or more formalities were not met.

Common Examples of Improper Execution

Improper execution can arise in various situations, including:

• Insufficient witnesses: If fewer than two witnesses signed the will, it does not meet the formal requirement.
• Witnesses not present at the same time: Both witnesses must be present when the testator signs or acknowledges their signature. If one witness signs later without being present at the key moment, the execution may be defective.
• Signature issues: If the testator did not sign the document, or someone else signed it without valid direction and presence, the formalities fail.
• Improper witness eligibility: If a beneficiary or their spouse/civil partner acted as a witness, while it may affect gifts to them, it can also raise issues about the integrity of the execution.
• Remote signing errors: Temporary provisions during the COVID‑19 pandemic permitted witnessing by video link under specific conditions. Outside that period, and unless those precise conditions were followed, remote execution may be invalid.

Step‑by‑Step: Challenging a Will for Improper Execution

1. Review the Will and Execution Circumstances

The first step is to carefully examine the physical will and any available records of how it was signed. Check for:

• Two witness signatures;
• Clear positioning of signatures;
• Names and contact details of witnesses if available;
• Any attestation clauses that record the signing process.

An attestation clause (a statement in the will describing how it was signed) is not legally required but can be useful evidence.

2. Gather Evidence of Execution Problems

To challenge a will on improper execution grounds, you need evidence that the formalities were not satisfied. Sources of evidence include:

• Witness statements confirming they did not see the signing, were not present at the same time, or were otherwise mis‑informed.
• Documentary evidence such as emails, text messages, or appointment records showing discrepancies in how the signing was arranged.
• Solicitor or will drafter files that may note how the will was executed or raise concerns about process.
• Affidavits or sworn statements from independent witnesses or professionals involved.

Because the legal presumption is that a will was duly executed, you must provide credible evidence to cast doubt on that presumption.

3. Seek Legal Advice

Challenging a will on execution grounds can involve detailed examination of facts and evidence. Early advice from a solicitor experienced in contentious probate helps assess the strength of your case, identify relevant evidence, and guide you on procedure and potential costs.

4. Consider a Caveat Before Probate

If probate has not yet been granted, you can apply to the Probate Registry to lodge a caveat. A caveat prevents a grant of probate being issued for six months and gives time to prepare a challenge without the estate being distributed. Caveats can be renewed if necessary.

5. Engage in Pre‑Action Correspondence

Before issuing formal proceedings, your solicitor will usually send pre‑action letters to the estate's representatives (often the executors). These letters set out your concerns and supporting evidence and may prompt clarification or informal resolution.

6. Issue Court Proceedings

If no resolution is reached, the next step is to issue a claim in the High Court (Chancery Division) or the appropriate county court for a determination that the will is invalid due to improper execution. In court, both sides present evidence, and the judge decides whether the formal requirements were satisfied.

Procedural Considerations and Time Limits

Unlike claims under the Inheritance (Provision for Family and Dependants) Act 1975, there is no strict statutory time limit to challenge a will for improper execution. However, once a grant of probate has been made and the estate distributed, challenges become more complex and possibly impractical. Acting promptly preserves evidence and legal options. A caveat can protect your position before probate is granted.

Risks and Practical Challenges

Challenging a will on improper execution has inherent risks:

• Burden of Evidence: Because execution is presumed valid where formalities appear correct, strong evidence is needed to overturn that presumption.
• Costs: Legal fees and expert costs can accumulate, especially if proceedings are complex.
• Delay: Probate disputes can take time, delaying estate administration.
• Witness Cooperation: Contacting witnesses and obtaining reliable statements may be difficult, particularly if they are elderly or unavailable.

In some cases, even if improper execution is suspected, gathering conclusive evidence may be challenging.

Common Questions

What happens if a will is declared invalid for improper execution?
If a will is found not to have been properly executed, it is treated as invalid. The estate will then be distributed under an earlier valid will if one exists. If no valid will is available, the estate is distributed under the intestacy rules.

Can a will signed during the COVID‑19 pandemic be challenged on execution grounds?
Temporary legislation allowed remote witnessing via video link during the pandemic. Wills executed under those specific conditions remain valid if all legal requirements at the time were met. However, wills that did not comply with those requirements or were signed remotely without satisfying the statutory conditions may be challenged.

Do witnesses have to know the contents of the will to be valid?
No. Witnesses do not need to understand the will's contents - they only need to observe the testator's signature or acknowledgment and then sign themselves.

Key Takeaways

A will must comply with strict formal requirements to be valid in England and Wales. Challenging a will for improper execution focuses on whether those formalities - writing, signing by the testator, and witnessing by two independent witnesses present together - were observed. Because the law presumes a will that appears properly executed is valid, challengers must present strong evidence to show that formalities were not met. Practical steps include reviewing the will's execution, gathering witness evidence, lodging a caveat where appropriate, and potentially issuing court proceedings. Acting promptly and seeking specialist legal advice are crucial to navigating these disputes effectively.

James William Steven Parker

James is the founder of UKLegalGuides.com and a former agent at the Ministry of Justice (UK). With a background in processing legal claims, he launched this platform to make the laws of England and Wales accessible to everyone.