How to Challenge a Will With Investment Disputes

Challenging a will is a specific legal process in England and Wales. It involves questioning the validity of a deceased person's will or seeking a remedy when the will either fails to make appropriate provision for dependants or there are disputes about the way estate assets, such as investments, have been handled. A challenge may result in the court declaring a will invalid, rectifying errors, or ordering financial provision from the estate.

This guide explains the law, practical steps, time limits, risks, and common questions for anyone considering a challenge to a will relating to investment disputes or other concerns.

What Does It Mean to Challenge a Will?

A challenge to a will is a legal claim that seeks to either:

• Invalidate a will because it is legally flawed, or
• Seek financial provision from the estate where the will fails to make reasonable provision for eligible claimants.

You cannot challenge a will simply because you are unhappy with the terms or because the distribution of investments (shares, bonds, property investment portfolio, trust assets) differs from your expectations. There must be specific legal grounds.

Legal Grounds to Challenge a Will

In England and Wales, the main legal grounds to challenge the validity of a will include:

1. Lack of Testamentary Capacity

To make a valid will, the person who made it (the testator) must have had “testamentary capacity”. This means they understood:

• that they were making a will,
• the nature and value of their assets (including investments),
• the people who might reasonably have expected to benefit, and
• the effect of the will's provisions.

This test is based on established case law and remains the key legal test applied by courts.

2. Lack of Knowledge and Approval

A will must reflect what the testator agreed to. If they did not know and approve its contents, for example because they could not read it or it was explained inadequately, the will may be invalidated.

3. Undue Influence or Coercion

An estate dispute may arise if the testator was pressured or coerced by another person and the will reflects that pressure rather than the testator's free choice. In these cases, influence must have been so significant that it overbore the testator's will.

4. Improper Execution

Wills must satisfy strict formal requirements under the Wills Act 1837. If the will was not correctly signed and witnessed, it can be legally invalid.

5. Forgery or Fraud

If a will contains forged signatures or was procured through fraud (for example, misrepresentation about investment values or estate composition), it may be challenged and set aside.

Additional Grounds

In some situations, claimants may also pursue:

• Rectification or construction claims where clerical errors or poor drafting lead to ambiguity, or
• Proprietary estoppel claims where the deceased promised certain rights or benefits that were not reflected in the will.

Investment-Related Disputes and Estate Challenges

Investment disputes in the context of wills typically arise in one of two ways:

A. Allocation of Investment Assets

When a testator's investments form part of the estate, disputes can occur over whether those investments were properly valued or understood by the testator. If evidence suggests the testator misunderstood the value or nature of investment assets at the time of signing, this may support a claim of lack of knowledge and approval or lack of capacity.

B. Misuse of Investment Powers by Executors or Trustees

Investment disputes can also involve claims against executors or trustees managing estate funds. While this does not directly challenge the validity of the will itself, a beneficiary may claim that trustees breached their fiduciary duties when handling investments (for example wrong investment decisions causing loss to the estate). In such cases the claimant can pursue the executors or trustees for breach of trust in separate legal proceedings. Cases such as Nestle v National Westminster Bank plc emphasise the duty of care owed by trustees in investment decisions.

A challenge to the will based solely on investment performance, without other legal grounds, is generally not permitted.

Who Can Make a Claim?

Not everyone can challenge a will. The two main categories of claimants are:

1. Those With a Legal Interest in the Estate

People who benefit under a previous valid will or under intestacy rules (where there is no will) may challenge the current will's validity. They must have a legal interest in the outcome of the case.

2. Dependants Seeking Financial Provision

Certain individuals can claim financial provision from an estate, even if the will is valid, under the Inheritance (Provision for Family and Dependants) Act 1975. Eligible claimants include spouses, civil partners, children, and other dependants. These claims focus on inadequate financial provision and are not directly about invalidating the will.

Steps to Challenge a Will

Step 1: Consider Early Legal Advice

Securing specialist legal advice early is essential. Inheritance disputes are complex and time‑sensitive.

Step 2: Lodge a Caveat

A caveat can be entered with the Probate Registry to prevent the grant of probate being issued while you prepare your case. A caveat lasts for six months and can be extended.

Step 3: Notify Relevant Parties

Inform the executors of the will about your intention to challenge it. Good practice is to do this before distribution of estate assets begins.

Step 4: Gather Evidence

Evidence may include medical records, witness statements, expert opinions (for example investment valuations), and documents showing estate composition at the relevant time.

Step 5: Alternative Dispute Resolution

Where possible, consider negotiation or mediation. Many disputes settle before court proceedings.

Step 6: Court Proceedings

If resolution is not possible, you may issue a claim in the appropriate court (usually the High Court or County Court in contested probate matters). The court will assess evidence and legal arguments.

Time Limits

Time limits vary by the type of claim:

• Claims under the Inheritance Act 1975 typically must be brought within six months of the Grant of Probate.
• Claims based on fraud, forgery, lack of capacity, or undue influence technically have no strict statutory time limit, but prompt action is advisable to preserve evidence.

Risks and Practical Considerations

Challenging a will carries significant risks:

• Costs: If your challenge is unsuccessful, you can be ordered to pay the legal costs of other parties. This may reduce the value of the estate.
• Family relationships: Legal disputes often strain personal relationships.
• Burden of Proof: The claimant must prove their case on the balance of probabilities, which can be difficult, especially for undue influence claims.

Common Questions from our Readers

Can I challenge a will because the investments lost value?

No. Investment performance after death or poor investment returns alone do not provide grounds to invalidate a will. Claims against executors or trustees for breach of fiduciary duty are separate from will challenges.

Can I change the terms of a will if it's found invalid?

If the court declares the will invalid, the estate is distributed according to an earlier valid will or under intestacy rules if no earlier valid will exists.

Is mediation compulsory?

Mediation is not compulsory, but courts often encourage it as a way to resolve disputes without full litigation.

Final Thoughts

Challenging a will in England and Wales requires a valid legal basis, careful evidence gathering, and prompt action. While disputes involving investment valuations or management need clear legal grounds like lack of knowledge and approval or undue influence, claims based solely on investment performance are not sufficient. Claimants may also pursue financial provision under the Inheritance Act 1975 if the will fails to provide adequate support to dependants.

Because contested probate matters can be costly and complex, early and specialised legal advice is essential.