Contesting a will on grounds of unfairness

This is a very common question and the short answer is that English law does not allow someone to challenge a will simply because they think it is unfair. The testator, the person who made the will, has a general right to leave their estate to whoever they wish. There is no legal requirement to be "fair" in any everyday sense of the word.

That said, there are specific legal grounds on which a will can be challenged, and some of those grounds can overlap with a sense of unfairness. It is worth understanding the distinction.

Grounds for challenging the validity of the will itself:

1. Lack of testamentary capacity. The testator did not have the mental capacity to understand what they were doing when they made the will. The test comes from Banks v Goodfellow (1870) and requires that the testator understood the nature of making a will, the extent of their estate, the claims of those who might expect to benefit, and was not affected by a disorder of the mind that influenced their decisions.

2. Lack of knowledge and approval. The testator did not know or approve the contents of the will. This can arise where, for example, someone else prepared the will and the testator signed it without understanding what it said.

3. Undue influence. Someone coerced or pressured the testator into making the will in a particular way. This is notoriously difficult to prove. The court requires evidence of actual coercion, not merely persuasion or influence. The burden of proof falls on the person alleging it.

4. Fraud or forgery. The will was forged, or the testator was deceived into signing it.

5. Failure to comply with formalities. Under section 9 of the Wills Act 1837, a will must be in writing, signed by the testator, and witnessed by two witnesses who were both present at the time of signing. If these requirements are not met, the will may be invalid.

If any of these grounds succeed, the will is set aside entirely or in part, and an earlier valid will or the intestacy rules would apply instead.

Claiming reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975:

This is the route that comes closest to addressing "unfairness," though the court does not use that word. Certain categories of people can apply to the court for reasonable financial provision from the estate if the will, or the intestacy rules, do not make reasonable provision for them. The eligible applicants are:

1. The spouse or civil partner of the deceased.
2. A former spouse or civil partner who has not remarried or entered a new civil partnership.
3. A child of the deceased.
4. A person treated by the deceased as a child of the family.
5. Any person who was being maintained, wholly or partly, by the deceased immediately before death.
6. A cohabitant who lived with the deceased as a spouse or civil partner for at least two years immediately before the death.

The standard for most applicants is whether the will fails to make reasonable financial provision for their maintenance. For a surviving spouse or civil partner, the standard is broader and is not limited to maintenance.

The court considers a range of factors including the applicant's financial resources and needs, the size of the estate, any obligations the deceased had towards the applicant, any physical or mental disability of the applicant, and any other relevant matter including the deceased's reasons for the disposition they made.

Important practical points:

A claim under the 1975 Act must normally be brought within six months of the grant of probate, though the court has a discretion to allow late claims. This deadline is strict and missing it significantly weakens the position.

Contesting a will on validity grounds has no fixed time limit, but delay can cause serious practical and evidential difficulties, and executors may distribute the estate after the statutory notice period.

These cases can be expensive, emotionally draining, and uncertain in outcome. Many are resolved through negotiation or mediation before reaching a final hearing, and that is often the sensible approach.

So in summary, feeling that a will is unfair is not itself a legal ground for challenge, but the law does provide specific routes where there is a genuine legal defect in the will or where the deceased has failed to make reasonable provision for someone who was entitled to expect it.