Understanding the difference between an Invalid Will and an unfair will is the critical starting point for any contentious probate claim. An Invalid Will is legally void, typically due to issues like lack of mental capacity or undue influence, and requires the claimant to challenge its formal validity. An Unfair Will, conversely, is legally valid but fails to make reasonable financial provision for a qualified dependent, requiring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The burden of proof, the evidence required, and the legal remedy differ significantly, necessitating specialist advice to pursue the correct legal avenue.
Invalid or Unfair? Why It’s Important to Differentiate
When a loved one passes away, the discovery of their Will can bring relief or profound distress. If you have been excluded or if the provisions seem nonsensical, the immediate reaction is often: “This Will is wrong and must be invalid!”
While the emotional response is understandable, the law draws a critical distinction: a Will can be brutally unfair yet still perfectly valid.
Understanding whether your grievance stems from an Invalid Will (a document flawed by law) or an Unfair Will (a document that fails a moral obligation) is the first, crucial step toward securing a successful resolution. One path requires proving the deceased’s mental state; the other requires proving your financial need. Confusing the two can lead to significant delays and wasted legal costs.
Part 1: The Invalid Will – Challenging Validity
An Invalid Will is a document that, for a specific legal reason, cannot be considered a true, legal expression of the deceased’s final wishes. If successful, the entire document is set aside, and the estate is distributed according to either the most recent valid Will or the Rules of Intestacy.
This is a high-stakes challenge with a heavy burden of proof resting on the claimant.
Grounds for Challenging Validity
There are four primary legal grounds to challenge a Will’s validity:
Lack of Formal Execution: The Will was not signed by the deceased in the presence of two independent witnesses, who then signed the Will in the deceased’s presence. This is common in DIY Wills.
Lack of Mental Capacity: The deceased did not possess the required mental capacity to understand the nature of their act, the extent of their property, and the claims of potential beneficiaries (known as the Banks v. Goodfellow test). This often requires compelling medical evidence.
Undue Influence: The deceased was coerced, pressured, or controlled by another person to the extent that the Will does not reflect their own free will. This is notoriously difficult to prove as the pressure often occurs in secret.
Lack of Knowledge and Approval: The deceased signed the Will but did not actually know or approve of its contents, perhaps due to failing eyesight, illiteracy, or being rushed.
Remedy: If the court finds the Will to be invalid, it is struck out. The estate reverts to the terms of the previous valid Will or is distributed under the statutory Rules of Intestacy.
Part 2: The Unfair Will – Claiming Reasonable Provision
An Unfair Will is a document that satisfies all the legal requirements for validity (it was properly signed, the person had capacity, etc.) but, nonetheless, fails in its moral and financial duty toward a person closely connected to the deceased.
This is where the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) comes into play. You are not challenging the Will itself; you are asking the court to vary the Will’s terms to make reasonable provision for your maintenance.
Grounds for Claiming Provision
The grounds are not about fault, but about financial necessity and moral obligation.
The court assesses the claim using the Section 3 factors, which include:
The financial needs and resources of the applicant (you) and any other beneficiaries.
The deceased’s moral obligations towards the applicant (e.g., if you provided years of unpaid care).
The size and nature of the estate.
The relationship between the deceased and the applicant.
Remedy: If the court finds the provision is unreasonable, it will not invalidate the entire Will. Instead, it will order a specific sum of money, or transfer of property, from the estate to the claimant to meet their necessary costs of maintenance.
A specialist contentious probate solicitor will spend the initial consultation determining which legal road to take, as the evidence required differs fundamentally:
Feature
The Invalid Will (Challenge to Validity)
The Unfair Will (1975 Act Claim)
Legal Basis
Common Law (Capacity, Influence)
Statute (Inheritance Act 1975)
Goal
To strike out the Will entirely.
To gain a financial sum for maintenance.
Key Evidence
Medical records, solicitor’s file notes, contemporaneous diaries, witness statements of pressure/decline.
Financial disclosure (income/assets), evidence of moral obligation (care logs, dependency proof).
Risk
Higher. If you fail, the original Will stands, and you usually pay both sides’ costs.
Moderate. Claims often settle based on clear financial need and moral duty.
Deadline
No hard deadline, but delays are fatal to evidence.
Strict 6-month deadline from the Grant of Probate.
The Critical First Step: Lodging a Caveat
Regardless of whether you believe the Will is invalid or simply unfair, there is one immediate, critical step: Lodging a Caveat.
A Caveat is a simple, low-cost legal warning lodged with the Probate Registry.
Its Function: It prevents the Grant of Probate from being issued.
Its Power: By preventing the Grant, it prevents the Executor from legally distributing any assets. This stops the clock on the six-month deadline for Inheritance Act claims and gives your solicitor essential time to fully investigate the validity issues without the risk of the estate being depleted.
This is the ultimate protective measure, and a solicitor should advise on this immediately after assessing your grounds.
Conclusion: Don’t Let Confusion Delay Your Claim
It is entirely natural to feel that a Will that excludes you after years of dependency or caregiving is “wrong.” But allowing the emotional reality of an Unfair Will to distract you from the factual requirements of an Invalid Will can be a costly mistake.
We specialise in listening to your story, applying the correct legal test, and constructing an evidence package that directly addresses the court’s requirements, whether that means proving lack of capacity or proving financial need.
If you are struggling to define your complaint, is it the document itself, or the outcome?
Get your free, no-obligation case assessment. Call 08002980029 or visit contestawilltoday.com
We will provide the clarity and authoritative guidance you need to pursue the correct legal avenue and secure your fair provision.
FAQs
1. If I successfully invalidate a Will, how is the estate then distributed?
If the court declares a Will invalid (due to issues like lack of capacity or undue influence), the estate is distributed based on the terms of the most recent previous valid Will. If there is no previous valid Will, the estate passes according to the Rules of Intestacy. These statutory rules set out a strict hierarchy of beneficiaries, usually prioritizing spouses, then children, then other blood relatives. It’s important to know who the beneficiaries would be under the intestacy rules, as you may or may not inherit under that scenario.
2. If I make an Inheritance Act 1975 claim, can I still challenge the Will’s validity later?
Yes, you can pursue both options simultaneously, though this is complex and requires careful management. Often, a solicitor will first challenge the Will’s validity (e.g., alleging undue influence). If the evidence for invalidity is deemed weak, or if the challenge fails, the claim can pivot or proceed concurrently with the Inheritance Act 1975 claim. The 1975 Act provides a crucial fallback position because it is generally a lower hurdle to prove financial need than to prove fraud or coercion.
3. Who pays the legal costs if I challenge a Will’s validity and lose?
If you challenge the validity of a Will (e.g., on the grounds of capacity or influence) and you lose, the general rule in litigation is that the loser pays the winner’s costs. Given the high costs of High Court litigation, this “adverse costs” risk is why many firms require the claimant to have After The Event (ATE) Insurance or a strong indemnity before proceeding with a validity challenge. Conversely, in a successful Inheritance Act 1975 claim, the legal costs often come out of the estate itself, depending on the circumstances.
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Frequently asked questions.
Can A Will Be Contested?
Disputes over wills can arise in several circumstances, including:
Testamentary capacity: The person who made the will (known as the testator) must have had the mental capacity to understand what they were doing and the consequences of their actions. This means that they must have been able to understand the nature and extent of their property, the people they were giving their property to, and the people they were excluded from their will.
Valid execution: The will must have been executed correctly under the law. This means it must be in writing, signed by the testator, and witnessed by two independent witnesses.
Undue influence: The testator must have made the will freely and without any pressure from others. The will may be invalid if someone was unduly influenced to make a will. Undue influence can occur when someone takes advantage of a testator’s vulnerability, such as if the testator is elderly, ill, or has a mental disability.
Fraud or forgery: If the will was forged or if someone fraudulently induced the testator to make the will, the will may be invalid.
Claims against a will must usually be made within six months of the grant of probate being issued. This is the legal document that gives the executor the authority to administer the estate. If a claim is not made within this time, it may be too late to challenge the will.
As such, executors often wait until this six-month period has expired before distributing the estate. This is to avoid having to distribute the estate and then having to take it back if a successful claim is made against the will.
Here are some examples of how these disputes can arise:
A family member may dispute a will if they believe that the testator did not have the mental capacity to make a will. For example, if the testator was suffering from dementia or Alzheimer’s disease at the time the will was made.
A family member may dispute a will if they believe that it was not executed correctly. For example, if the will is not signed by the testator or if it is not witnessed by two independent witnesses.
A family member may dispute a will if they believe that they were unduly influenced to make the will. For example, if a caregiver or another family member pressured the testator to make the will in their favour.
A family member may dispute a will if they believe that it was forged or if someone fraudulently induced the testator to make the will. For example, if someone forged the testator’s signature on the will or if someone lied to the testator about the contents of the will.
If you are thinking about disputing a will, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.
What are the different Types of Trusts?
Types of Trusts
Many different types of trusts can be set up, depending on your specific needs and goals. Some of the most common types of trusts include: Bare Trusts: A bare trust is a simple type of trust in which the trustee holds the assets for the benefit of the beneficiary. The beneficiary is entitled to the income and capital of the trust as soon as they are old enough to receive them.
Interest in Possession Trusts: An interest in possession trust is a type of trust in which the beneficiary is entitled to the income from the trust immediately, but not to the capital until a later date. This type of trust is often used for minor beneficiaries or for beneficiaries who are not yet responsible enough to manage their own money.
Discretionary Trusts: A discretionary trust is a type of trust in which the trustee has the discretion to decide how and when to distribute the income and capital of the trust to the beneficiaries. This type of trust is often used for families with multiple beneficiaries or beneficiaries with special needs.
Accumulation Trusts: An accumulation trust is a type of trust in which the income from the trust is accumulated and not distributed to the beneficiaries until a later date. This type of trust is often used to save for a specific purpose, such as a child’s education or a retirement fund.
Mixed Trusts: A mixed trust is a type of trust that combines elements of different types of trusts. For example, a trust may be a discretionary trust for one beneficiary and an interest in possession trust for another beneficiary.
Settlor-Interested Trusts: A settlor-interested trust is a type of trust in which the settlor (the person who creates the trust) retains some interest in the trust assets. For example, the settlor may retain the right to receive income from the trust or to appoint the trustee.
Non-Resident Trusts: A non-resident trust is a type of trust that is created and governed by the laws of a country other than the country where the settlor or beneficiaries reside. Which type of trust is right for you will depend on your specific needs and goals. It is important to consult with an estate planning attorney to discuss your options and choose the type of trust that is best for you. Here are some examples of how different types of trusts can be used: A bare trust can be used to hold assets for a minor child until they reach the age of majority.
An interest in possession trust can be used to provide income to a beneficiary who is not yet responsible enough to manage their own money.
A discretionary trust can be used to manage assets for a family with multiple beneficiaries or for beneficiaries with special needs.
An accumulation trust can be used to save for a specific purpose, such as a child’s education or a retirement fund.
A mixed trust can be used to achieve a variety of different goals, such as providing income to one beneficiary and preserving capital for another beneficiary.
A settlor-interested trust can be used to retain some control over trust assets after the settlor has created the trust.
A non-resident trust can be used to reduce estate taxes or to protect assets from creditors. It is important to note that this is just a brief overview of the different types of trusts. There are many other types of trusts available, and each type of trust has its own specific features and benefits. For more information please visit www.gov.uk/trusts-taxes/types-of-trust
What are Examples of Inheritance Trust disputes?
Inheritance trust disputes can be complex and varied, but some common scenarios include:
Disputes over the validity of the trust: This can happen if the settlor (the person who created the trust) does not have the mental capacity to create a trust, or if the trust deed was not executed correctly.
Disputes over the interpretation of the trust deed: If the trust deed is poorly drafted or unclear, it can lead to disputes between the trustees and beneficiaries about how the trust should be administered.
Disputes over the appointment or removal of trustees: Trustees have a legal duty to act in the best interests of the beneficiaries. If a trustee is not acting in the best interests of the beneficiaries, the beneficiaries may apply to the court to have the trustee removed.
Disputes over the investment of trust assets: Trustees have a legal duty to invest trust assets prudently. If a trustee makes investments that are too risky or that lose money, the beneficiaries may sue the trustee for breach of duty.
Disputes over the distribution of trust assets: Trustees have a legal duty to distribute trust assets to the beneficiaries in accordance with the terms of the trust deed. If a trustee distributes trust assets incorrectly, the beneficiaries may sue the trustee for breach of duty.
Here are some specific examples of inheritance trust disputes that have occurred in the UK:
In one case, a beneficiary disputed the validity of a trust deed on the grounds that the settlor (the person who created the trust) did not have the mental capacity to create a trust at the time it was set up.
In another case, a beneficiary sued the trustees for breach of duty after the trustees made a number of risky investments that lost money.
In a third case, a beneficiary sued the trustees for breach of duty after the trustees distributed trust assets to the beneficiaries in a way that was not in accordance with the terms of the trust deed.
Other possible disputes include:
A beneficiary was expecting more than what is set out in the trust document. This may be because the beneficiary had a reasonable belief that they would receive more, or because the trust document is unclear about the beneficiary’s entitlement.
The individual who set up the trust was provided with negligent or misleading advice. If the settlor was not properly advised about the consequences of setting up a trust, or if they were given incorrect information, they may be able to challenge the trust.
The trust document is either incomplete or unclear about the wishes of the deceased. If the trust document is incomplete or unclear, it can lead to disputes between the trustees and beneficiaries about how the trust should be administered.
A trustee acts against the best interests of the beneficiary or doesn’t administer the trust correctly. Trustees have a legal duty to act in the best interests of the beneficiaries. If a trustee breaches their duty, the beneficiaries may sue the trustee.
If you are involved in an inheritance trust dispute, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.
What’s the difference between contesting a will and contentious probate?
Contesting a will is challenging the validity of a will. This can be done on a number of grounds, including.
The testator (the person who made the will) did not have the mental capacity to make a will.
The will was not executed correctly, i.e., it was not signed by the testator or witnessed by two independent witnesses.
The testator was unduly influenced to make the will.
The will was forged or fraudulent.
Contentious probate is any dispute about the administration of a deceased person’s estate. This can include disputes about
The validity of the will.
The interpretation of the will.
The appointment or removal of executors.
The distribution of the estate assets.
The management of the estate.
In the UK, contentious probate is dealt with by the High Court.
The main difference between contesting a will and contentious probate is that contesting a will is specifically challenging the validity of the will, while contentious probate can include a wide range of disputes about the administration of an estate.
Here is an example:
Contesting a will: A beneficiary challenges the validity of a will on the grounds that the testator did not have the mental capacity to make a will.
Contentious probate: A beneficiary disputes the interpretation of a will and argues that they are entitled to a larger share of the estate than they have been given.
It is important to note that the two terms are often used interchangeably. For example, a lawyer might say that they are “dealing with a contentious probate matter” when they are actually challenging the validity of a will.
If you are thinking about contesting a will or pursuing a contentious probate claim, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.
How Long Do You Have to Make a Contentious Probate Claim?
The time limit for making a contentious probate claim in the UK is six months from the grant of probate. This is the legal document that gives the executor the authority to administer the estate.
If you do not make your claim within this six-month time limit, you may need to apply to the court for permission to make a late claim. The court will only grant permission if you have a good reason for not making your claim on time.
There are a number of factors that the court will consider when deciding whether to grant permission for a late claim, including:
Why did you not make your claim on time?
The strength of your case.
Whether the other beneficiaries will be prejudiced if your claim is allowed to proceed.
If the court grants you permission to make a late claim, you will need to file your claim within 28 days.
It is important to note that there are some exceptions to the six-month time limit. For example, if the executor has committed fraud or concealed assets from the beneficiaries, the beneficiaries may be able to make a claim after the six-month time limit has expired.
If you are thinking about making a contentious probate claim, it is important to seek legal advice as soon as possible. A lawyer can assess your case and advise you on the time limits that apply and whether you have a good case.
Here are some examples of when you might be able to make a late contentious probate claim:
You were not aware of the death of the deceased until after the six-month time limit had expired.
You were unable to make your claim on time because you were ill or incapacitated.
The executor has deliberately concealed information from you about the estate.
The executor has committed fraud in the administration of the estate.
The 12-year limit for making a contentious probate claim in the UK applies to claims for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975. This means that if you are making a claim for financial provision from an estate, you must do so within 12 years of the date of the deceased’s death.
The reason for the 12-year limit is to encourage people to make their claims as soon as possible after the deceased’s death. This is because it can become more difficult to investigate and prove a claim after a long period of time has elapsed.
If you are unsure whether you are able to make a late contentious probate claim, you should seek legal advice.
Do I have to go to court to contest the probate?
Most disputes in the UK are resolved out of court through mediation and negotiation. This is because it is generally faster, cheaper, and less stressful for all involved.
If you are considering disputing a will, it is important to contact a contentious probate specialist before you involve any other relatives or beneficiaries of the estate. A specialist lawyer can advise you on your legal options and help you to resolve the dispute quickly and efficiently.
Here are some of the benefits of resolving a will dispute out of court:
It is faster and cheaper than going to court.
It is less stressful for all involved.
It allows you to maintain relationships with other family members and beneficiaries.
You have more control over the outcome of the dispute.
There are a number of steps that you can take to try to resolve a contentious probate dispute without going to court, including
Negotiation: You can try to negotiate a settlement with the other parties to the dispute. This may involve making concessions on your part, but it can be a good way to avoid the time and expense of court proceedings.
Mediation: Mediation is a process where an independent mediator helps the parties to reach a mutually agreeable settlement. Mediation can be a good way to resolve a dispute without going to court, but it is important to note that it is not binding on the parties.
Arbitration: Arbitration is a more formal process than mediation, and it is binding on the parties. However, it can still be a good way to resolve a dispute without going to court.
If you are unable to resolve the dispute amicably, you will need to file a claim with the High Court. The court will then hold a hearing to decide the case.
