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Where There is a Will in the Way – An Overview of Estate Claims and Challenging Wills

The loss of a family member or an acquaintance can be one of the most difficult situations to face.  A surprise as to how the deceased has left their affairs, can often compound the stress and emotions being experienced. 

While the law assumes that a validly executed Will reflects the testator’s (willmaker’s) intentions, there are a number of legal frameworks to protect both the testator and those left behind.  When working with a client who is faced with an unexpected situation under a Will, we consider each of these in assessing whether or not the Will could or should be challenged.

Capacity – Did they know what they were doing?

Testamentary capacity has both a medical and a legal element to it.  In general terms, the Court must be satisfied that the testator understood what they were doing, and the consequences of it.

In assessing such a claim, it will be important to obtain full medical records and to take appropriate expert advice as to any impairments the testator may have had at the point of executing the Will.

Undue Influence – Were they pressured?

A testator can be found to have been subject to undue influence, if they were pressured or coerced into signing a Will contrary to what they wanted.

A duress situation is more likely to occur when a Will is not executed with the assistance of a lawyer and/or is not witnessed by a lawyer, though pressure can also have been exerted when a lawyer has been involved.

Duress is a high threshold, and a Court needs to be satisfied that the Will does not reflect the testator’s real wishes and own free will.

If there are issues of capacity, there is also greater risk of duress being imposed on a testator.

Testamentary Promise – Why didn’t they do what they said they said they would?

A testamentary promise claim addresses a situation when someone has provided services/assistance to the deceased based on an express or implied promise that they would be provided for in the Will. 

Such claims often arise from people outside of family, as normal familial duties will seldom meet the testamentary promise test.

When assessing what reasonable compensation is for the service provided by the claimant, the Court will take into account a range of factors.

Family Protection Act – But what about family?

Family Protection Act claims are the most common basis to challenge a Will.  Most immediate family members have standing to bring such a claim, which will be on the basis that the testator has failed to meet the moral duty owed to them.

While there is an argument that someone should be able to leave their estate to whoever they wish, the law has a framework to ensure the deceased has considered the moral duties which the law imposes.

Where a moral duty has been breached, a Court can only amend the Will to the extent necessary to remedy the breach.  Doing so requires the Court to take into account factors including the financial needs of the claimant, the size of the estate and competing moral duties.

What Happens if a Claim is Successful?

Different claims can result in different outcomes.  If a Court finds that there was a lack of capacity or duress, the outcome is that the Will in question can be declared void.  This could result in an earlier valid Will coming into effect, or if there is no other valid Will, default intestate distributions will be made.

Conversely, in the case of a successful Family Protection Act claim or testamentary promises claim, the position under the Will will only be varied to the extent necessary to address the problem. 


Managing estate claims requires careful assessment of the options and the wider considerations such as family dynamics and relationships.  There are statutory timeframes which apply so it is important that concerns are raised as soon as possible.

In nearly all situations, a negotiated outcome will minimise the stress and long-term damage which can result from litigating such matters.

Daniel leads our Dispute Resolution Team, specialising in Trust and Estate Disputes, and can be contacted on 07 958 7477.

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