Legal grounds to challenge a Will
A Will can be challenged on grounds of:
- Lack of testamentary capacity
- Testator did not have mental capacity (Banks v Goodfellow)
2. Lack of knowledge and approval
- Testator did not understand or approve the contents of the will
3. Undue influence
- Will was made as a result of coercion or manipulation
4. Failure to comply with formalities
- Will not signed, witnessed, or executed properly (s.9 Wills Act 1837)
5. Fraud or forgery
- Will is fake, altered, or signed fraudulently
6. Revocation
- Will was revoked by later will, destruction, or marriage (s.18 Wills Act)
Testamentary capacity
Testamentary Capacity (Banks v Goodfellow Test)
The test from Banks v Goodfellow (1870) requires that the testator:
- 1.Understands the nature of making a will and its effects
They know they’re creating a legal document that disposes of their property after death.
- Understands the extent of their property
They have a general understanding of what they own.
- Comprehends and appreciates the claims to which they ought to give effect
Recognize the people who might have a claim on their estate. They are aware of natural beneficiaries (like family members) and can decide rationally whether or not to include them.
- 4.Is not suffering from a mental disorder affecting decisions
Conditions like dementia, psychosis, or undue influence can invalidate a will if they impair decision-making.
Presumption Arising from Valid Execution
When a will is:
- Properly executed — signed by the testator and witnessed in accordance with statutory requirements (e.g., Wills Act 1837 in England & Wales, or similar statutes in other jurisdictions), and
- Rational on its face — meaning the will makes sense and isn’t obviously the result of confusion or delusion,
then the law presumes the testator had the mental capacity to make the will.
This presumption is part of broader evidentiary principles: courts don’t assume wrongdoing or incapacity when the will appears valid and reasonable.
Case Law Support
The idea is grounded in case law. For example:
- Key v Key [2010] (England & Wales): Reaffirmed that where a will is validly executed and appears rational, a presumption of capacity applies unless there is evidence raising a real doubt.
Rebutting Presumption of Testamentary Capacity
Medical Evidence of Cognitive Impairment
- Evidence that the testator was suffering from dementia, Alzheimer’s disease, delusions, or mental illness at or near the time the will was executed.
- Medical records, doctor evaluations, or expert psychiatric opinions can be used.
Witness Testimony
Testimony from those who observed unusual or confused behavior:
- Caregivers
- Family
- Friends
- Neighbors
For example, witnesses may say the testator didn’t recognize close relatives or didn’t understand what a will was.
Evidence of Undue Influence
- Showing that the testator was manipulated by someone who exerted control or pressure (e.g., isolation from family, threats, coercion).
- This doesn’t directly negate capacity, but it may support a finding that the testator didn’t act of their own free will, undermining the will’s validity.
Unusual or Drastically Changed Provisions
- A radical departure from previous wills, such as:
- Disinheriting close family members without explanation.
- Favoring someone unexpected (like a caregiver or new acquaintance).
- These can raise suspicion about capacity and prompt closer scrutiny.
Timing of the Will
- If the will was made soon before death, or during a known period of illness or confusion, the challenger may argue that the testator was not of sound mind at the time.
Burden of Proof
- Initially on the person challenging the will (they must show “prima facie” evidence of incapacity).
- If successful, the burden may shift back to the propounder of the will (often the executor or beneficiary) to prove the testator had capacity
Knowledge and Approval
Requirement of Knowledge and Approval - s.24 Wills Act 1837
A testator must understand and approve the contents of their will at the time they execute it.
Presumption of Knowledge and Approval
If the will is duly executed, and there are no suspicious circumstances, knowledge and approval is usually presumed by the court.
Leading cases on this presumption
- Barry v Butlin (1838) - If suspicious circumstances exist, the court requires affirmative proof of knowledge and approval.
- Re Belliss (1929) - Where no suspicious circumstances exist and the will is duly executed, knowledge and approval is presumed.
- Hoff v Atherton [2004] EWCA Civ 1554 - Confirms that due execution raises the presumption of both testamentary capacity and knowledge and approval.
If there are suspicious circumstances, the court will demand affirmative evidence that the testator did know and approve the will.
Suspicious circumstances can include
- A will prepared by or at the direction of the main beneficiary
- A significant departure from previous wills.Exclusion of close family without explanation
- A vulnerable or isolated testator
- The testator was very ill, frail, or cognitively impaired at the time.
- Lack of legal advice or professional assistance.
Undue Influence
Requirement of Undue Influence
- Requires positive evidence of coercion — that the testator was forced or manipulated into signing the will.
- The burden of proof is on the person alleging undue influence.
- It is not presumed, even if the beneficiary was in a position of power or trust.
Important: - A testator may understand and approve a will and still have been coerced into signing it — so both tests must be assessed separately.
- Knowledge and Approval is presumed
- Undue Influence must be proven
How Courts Treat Both in Practice
- If knowledge and approval is not established, the will fails — even without proving undue influence.
- If knowledge and approval is established, the challenger must then prove undue influence to have the will set aside.
- Courts are cautious and require strong evidence to set aside a will.
Example Scenario
Mrs. Thomas, aged 89 and frail, changes her will to leave her entire estate to her new carer, excluding her two children. The carer arranged the solicitor and was present at all meetings.
- Knowledge and approval: Suspicious circumstances arise. The court will not presume knowledge and approval — it must be proved affirmatively.
- Undue influence: If the children allege that the carer pressured Mrs. Thomas, they must provide direct evidence of coercion, not just suspicion.
Formalities of Will
To be legally valid, a will must meet several core components. (Wills Act 1837, s.9)
1. In Writing
- The will must be in writing (typed or handwritten).
- Oral wills (known as “nuncupative” wills) are generally not valid, except in very rare military cases.
2. Signed by the Testator
- The will must be signed by the testator (person making the will), or by someone else in the testator’s presence and at their direction.
3. Intent to Give Effect to the Will
- The testator must sign the will with the intention of giving effect to it — e.g., not accidentally signing a draft.
4. Attestation by Two Witnesses
- The signature must be witnessed by two people, both present at the same time.
- They must then sign the will themselves, in the presence of the testator (not necessarily each other).
- Witnesses should be independent adults
- Witnesses must not be beneficiaries (or spouses of beneficiaries), or they risk losing their inheritance under the will. (Section 15 Wills Act)
Will Revocation
How a Will can be revoked
- Revocation by Marriage or Civil Partnership s.18
- Revocation by a Later Will or Codicil
- Revocation by Destruction (S.20 Wills Act 1837)
- Revocation by Writing (S.20)
- Revocation by Operation of Law, s.18 A-D
Will Revocation due to marriage
Revocation of Will by Marriage – Wills Act 1837, Section 18
Marriage or civil partnership automatically revokes a will made before the marriage.
Exception
- Will Made in Contemplation of Marriage - Wills Act 1837, s.18(3) & (4)
- A will is not revoked by marriage if it was made:
- In contemplation of marriage, to a specific person, and
- This intention is expressly stated in the will.
Key Requirements
- Contemplation must be of a specific marriage (not marriage generally).
- Must be expressed clearly in the will (e.g., “This will is made in contemplation of my forthcoming marriage to Jane Smith”).
- The marriage must actually take place.
Case Law:
- Re Coleman [1975] 1 WLR 912: General contemplation of marriage (not naming the spouse) was not sufficient to avoid revocation.
- In the Estate of Gibb [1942]: Will was saved because it expressly referred to the upcoming marriage to a named person.
Revocation by later Will or Codicil
Express Revocation
- A later will or codicil can revoke an earlier will expressly by using clear wording, such as:
- “I hereby revoke all former wills and testamentary dispositions previously made by me.”
- Effect: The entire earlier will is revoked.
- Standard practice: Almost all professionally drafted wills will include an express revocation clause.
Implied Revocation
- Occurs when a later will does not include an express revocation clause, but its provisions are inconsistent with an earlier will.
Inconsistency Example:
Will 1: Leaves entire estate to son.
Will 2: Leaves entire estate to daughter, no revocation clause.
→ Implied revocation of Will 1.
Courts presume that the testator intended the later will to take precedence.
Codicils and Partial Revocation
A codicil is a document that modifies (but does not revoke entirely) an existing will.
Codicils may:
- Add or change gifts.
- Confirm the rest of the will.
- Revoke only part of the will.
Important
Codicils must still follow section 9 formalities (signed and witnessed like a will).
Affidavit of plight and condition
Example
The gift to beneficiary has been altered, however, as it is unattested and the alteration was made after the execution of the will, it is an ineffective alteration. As the original amount of the gift is still apparent, £500 is payable to the beneficiary. The executors will likely be required to swear an affidavit of plight and condition as an alteration has been attempted.
How is estate distributed when beneficiary predeceased the testator
1. General rule – gift lapses
- If a beneficiary dies before the testator, the gift to them usually fails (lapses).
- The property then falls into the residuary estate (the remainder of the estate after debts, expenses, and other gifts are paid).
- If the failed gift was part of the residuary estate itself, it may fall into intestacy (as if no will was made for that portion).
2. The anti-lapse rule (Section 33 of the Wills Act 1837)
There is an important exception for children or remoter descendants of the testator (e.g., grandchildren).
If a testator leaves a gift to a child (or remoter descendant) and that child dies before the testator but leaves issue (children) of their own, the gift does not lapse.
Instead, it automatically passes to the beneficiary’s children, divided equally unless the will states otherwise. (so long as there is no contrary indication in the will)
Reversionary interest
Key Legal Principle:
A reversionary interest in a trust (i.e. a future right to capital after a life interest) is a form of property — even though it’s not currently vested.
What Happens to the Interest?
1. Did the deceased make a will?
Yes, but did not mention the trust interest:
The reversionary interest passes under the residuary clause in the will.
Example: “I leave the residue of my estate to my children equally.”
That includes any property the deceased owned or had an interest in at death — including this trust interest, even if it’s future or contingent.
No will (intestacy):
The reversionary interest passes under the rules of intestacy, usually to:
Spouse, then
Children, then
Other relatives, in order of priority
Legal authority
Reversionary interest is part of estate s.4 IHTA 1984
Alteration of wills
- Statutory Framework
Wills Act 1837 (as amended by Administration of Justice Act 1982)
Governs execution, alteration, and revocation of wills.
Key sections:
s.20 Wills Act 1837 → alterations made after execution are ineffective unless executed in the same manner as the will itself (signed and attested). or word is completely erased.
Artificial means cannot be used to read the obliterated words in the will, as established in Townley v Watson (1844)
s.21 → extrinsic evidence admissible to resolve ambiguity.
- Types of Alterations
(a) Before Execution
Alterations made before the will is signed and witnessed are valid.
Treated as part of the will (as though originally drafted).
(b) After Execution
Alterations made after signature and attestation:
Not valid unless the alteration itself is re-executed (signed and witnessed again).
If not properly executed:
Unoblitereated words = original words stand.
Obliterated words (illegible due to deletion) = treated as blank → if it can’t be read, it is ignored unless proved by evidence.
- Presumptions & Rules
Presumption of timing: If alteration looks different (ink/handwriting), presume it was made after execution.
Burden of proof: On the party seeking to rely on the alteration to prove compliance.
Codicil: Often the safer route → any change can be validated via a properly executed codicil.
- Common Situations in SQE2
Adding beneficiaries: Ineffective unless alteration is re-executed.
Deleting a gift: If illegible, the gift may lapse; if legible, original stands.
Interlineations (words squeezed in): Valid if before execution; invalid unless re-executed if after.
Pinned/stapled pages: Risk of invalidating will unless clear evidence of intention and attestation.
- Key Cases
Cooper v Bockett (1846) – alteration presumed to be after execution unless shown otherwise.
Re Itter [1950] – pencil alterations presumed to be deliberative, not final.
Sugden v Lord St Leonards (1876) – oral declarations admissible to explain ambiguities (linked to s.21 Wills Act).
- Practical Exam Tips (SQE2)
Spot validity issues: Always check if alteration made before or after execution.
Advise safest route: Usually draft a new will or codicil, rather than altering an existing will.
Check execution formalities: Must be signed by testator in presence of 2 witnesses present at the same time.
Remember professional duty: Solicitor should initial and witness any alteration before execution; never after.
Use problem-solving structure:
Identify alteration (before/after execution?).
Apply s.20 rule.
Consider if alteration is legible/illegible.
Advise new will/codicil as best practice.
Amendament of wills
Will formalities and knowledge and approval
**Legislation **
s.9 of Wills Act 1837 - Signing and attestation of wills
No will shall be valid unless—
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction;
(b) it appears that the testator intended by his signature to give effect to the will;
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature,
in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary.
Note
if the wills has been attested correctly in accordance with s.9 Wills Act 1837 then there is sufficient knowledge and approval (Barry Butlin) unless there is suspicion
Presumption on alteration
General presumption
Any alteration on the face of a will is presumed to have been made after execution (Cooper v Bockett (1846)).
Rationale → avoids fraud and tampering.
Effect of the presumption
If presumed after execution, the alteration is ineffective unless re-executed (s.20 Wills Act 1837).
Burden of proof falls on the party relying on the alteration to show it was made before execution (or properly re-executed).
Exceptions / Rebuttals
Appearance of alteration: If it clearly looks like it was made before signing (e.g., same ink, continuous handwriting, no disruption in attestation clause), the presumption can be rebutted.
Pencil alterations: Courts presume these are deliberative only (not intended as final) — e.g., Re Itter [1950].
Ambiguity: If uncertain, court may rely on extrinsic evidence (s.21 Wills Act 1837).
Attestation Clause in Wills
1. What it is
The attestation clause is the statement at the end of a will where the witnesses confirm the testator signed (or acknowledged their signature) in their presence, and that they both signed in the presence of the testator.
Example wording:
“Signed by [the testator] in our presence and then by us in the presence of [the testator] and each other.”
2. Legal Position (Wills Act 1837)
s.9 Wills Act 1837 requires proper execution (signature by testator, 2 witnesses present at the same time).
BUT the Act does not require an attestation clause.
A will without one can still be valid if execution is proven.
3. Why it matters
With attestation clause → presumption of due execution (saves having to prove witness evidence).
Without attestation clause → on probate, evidence may be needed to show the will was executed correctly.
For exam purposes:
If will has a full attestation clause → assume due execution.
If will lacks it (or has alterations near it) → flag possible proof issues.
4. Placement in the Will
It comes at the end of the will (just before or around the witnesses’ signatures).
It is treated as part of the will document, but unlike dispositive provisions (gifts/clauses), it serves an evidential function rather than disposing of property.
SQE2 Exam Tip
Always check if the will contains an attestation clause.
If yes → execution is presumed valid.
If no → raise a risk that additional evidence may be required on probate.
If alterations affect the attestation clause → presume alteration was after execution unless rebutted.
Ways terms of Will can be varied post death
1. Deed of Variation
- What it is: Beneficiaries of an estate can agree to re-direct or vary their inheritance.
- Requirements:
- Must be in writing and signed by affected beneficiaries.
- Beneficiary must be over 18 and of sound mind.
- Must be made within 2 years of death to be effective for inheritance tax (IHT) and capital gains tax (CGT) purposes.
- Effect: Treated as if the testator had made the change in the will themselves (for tax purposes).
- Typical use: To redirect assets to children/grandchildren or into a trust for tax efficiency.
2. Disclaimer / Renunciation
A beneficiary can disclaim (refuse) their inheritance.
Once disclaimed, they cannot change their mind.
The gift passes as if that beneficiary had died before the testator → may fall into residue or trigger intestacy provisions.
Executors can also renounce probate before taking out the grant (not the same as disclaiming a gift).
3. Court Powers to Vary a Will
Courts can override or modify will provisions in certain circumstances:
a) Inheritance (Provision for Family and Dependants) Act 1975
Grounds: If a will (or intestacy) fails to make “reasonable financial provision” for certain categories (spouse, civil partner, child, dependent).
Court’s powers: Can order redistribution of the estate to provide proper maintenance.
Effect: Court effectively rewrites the disposition to secure provision.
b) Rectification (Administration of Justice Act 1982, s.20)
Grounds: Where a will fails to carry out the testator’s intentions due to:
Clerical error, or
Failure to understand the testator’s instructions.
Court’s powers: Can correct the wording to reflect the true intention.
Example: Will says “£5,000 to Charity A” but instructions were clearly £50,000.
c) Construction of Wills (Interpretation)
If wording is ambiguous or uncertain, the court may interpret the will using surrounding evidence (s.21 Administration of Justice Act 1982).
This doesn’t vary the will, but clarifies its meaning.
4. Equitable Doctrines
Ademption by mistake / tracing → sometimes courts prevent unfair ademption.
Resulting trust / constructive trust → may be imposed if the will fails to dispose of property properly.
Exam-Ready Summary
Post-death variation of wills happens through:
Private arrangements → deed of variation, disclaimers.
Court intervention → Inheritance Act 1975 (reasonable provision), rectification (clerical/intention errors), construction (interpretation).
Equitable principles → to prevent injustice where the will doesn’t deal properly with property.
**SQE2 Tip: **
In a scenario, first check whether beneficiaries can agree privately (variation/disclaimer). If not, consider whether statutory/court intervention applies (Inheritance Act claim, rectification, construction).
Deed of variation
A Deed of Variation (DoV) is a formal document used to re-direct an inheritance after someone has died. Here’s how it is implemented step by step:
Key Requirements
- Timing
- Must be executed within 2 years of death.
- Backdated for inheritance tax (IHT) and capital gains tax (CGT) purposes to the date of death (Inheritance Tax Act 1984, s.142).
- Who signs
- All beneficiaries whose inheritance is affected must sign.
- Beneficiaries would need to agree in writing to redirect their entitlement in favour of the new beneficiary.
- The personal representatives (executors/administrators) don’t usually need to sign unless the variation changes their powers or duties.
- Formality
- Must be in writing (a deed is standard).
- Must clearly state it is intended to take effect under s.142 IHTA 1984 and/or s.62(6) TCGA 1992 (so HMRC treats it as if it were in the deceased’s will).
- Must not be for “consideration in money or money’s worth” — otherwise, it’s treated as a normal transaction and not a variation.
Steps in Practice
- Take instructions: Discuss with all beneficiaries to confirm willingness.
- Draft the deed: A solicitor prepares the document setting out:
- the deceased’s details,
- the original entitlement under the will/intestacy,
- the new arrangement
- the statement invoking s.142 IHTA 1984 and s.62 TCGA 1992.
- Execution: All affected beneficiaries sign the deed (usually witnessed, as it is executed as a deed).
- Notify HMRC: If the variation affects tax, send a copy of the deed to HMRC within 6 months of execution.
Property transfer: The variation is binding on the estate, and the Land Registry can then register the new beneficiary as new owner.
Rule under s.142 Inheritance Tax Act 1984
Section 142 of the Inheritance Tax Act 1984 is the key provision that makes a Deed of Variation work for tax purposes.
Here’s the essence of it in plain terms:
- Normally, if a beneficiary gives up (or “redirects”) an inheritance to someone else, that would count as their own gift for inheritance tax (IHT).
- s.142 IHTA 1984 creates a special rule:
- If the variation is made within 2 years of death,
- and the beneficiaries state in writing that s.142 applies,
- then the tax law treats the estate as if the deceased had left the property directly to the new beneficiary in the first place.
That means:
- No IHT “gift” by the original beneficiary
- Instead, the estate is taxed as though the deceased himself had left the property to the new beneficiary in his will.
why making a will instead of relying on rules of intestacy
- He will be able to choose who his executors and trustees are
- He can appoint guardians to look after Nicholas
- He has control over who benefits from his estate and what amount they benefit rather than relying on the intestacy provisions
- He can ensure that his mother receives a benefit in his will as under the current intestacy provisions she would not be a beneficiary
- Having a will prepared can help mitigate any inheritance tax payable on the estate
Validity of a will
1. Statutory Framework
- Governed by s.9 Wills Act 1837 (as amended by Administration of Justice Act 1982).
2. Formal Requirements (s.9 Wills Act 1837)
For a will to be valid, it must:
- Be in writing.
- Signed by the testator (or by someone else in their presence and at their direction).
- Testator must intend by their signature to give effect to the will.
- Signature witnessed by two witnesses:
- Present at the same time.
- Must see the testator sign (or acknowledge signature).
- Each witness must attest/sign in the presence of the testator.
- Witnesses do not need to know the document is a will.
3. Capacity
Derived from Banks v Goodfellow (1870):
- Understand nature of the act and its effects.
- Understand extent of property.
- Comprehend and appreciate claims to which they ought to give effect.
- No disorder of mind that poisons affections or prevents sense of right.
4. Knowledge & Approval
- Testator must know and approve contents.
- Presumed where will duly executed by capable testator.
- Suspicious circumstances (e.g. drafter major beneficiary) require positive proof.
5. Absence of Undue Influence or Fraud
- Must not be obtained by coercion, pressure, fraud, or forgery.
6. Age
- Testator must be 18 or over (except privileged wills: soldiers/sailors on active service).
7. Other Considerations
- Revocation: by later will, marriage/civil partnership, or destruction with intent.
- Beneficiaries as witnesses: valid as to execution, but gifts to that witness (or their spouse/civil partner) are void (s.15 Wills Act 1837).
Gift Disclaimer
Right to disclaim
The right to disclaim an interest in an estate is established in Townson v Tickell (1819)
Method of disclaim
Re Stratton’s Disclaimer [1958] Ch. 42 establishes that a disclaimer does not need to be in writing, but for inheritance tax or capital gains tax purposes. it must be in writing.
1.
Will obliteration
1. Definition
Obliteration = physical act of destroying or defacing part of a will (e.g., crossing out, erasing, tearing, burning).
Can apply to part of the will (a gift, clause, or word) or the entire document.
Treated as a form of revocation or alteration, depending on context.
2. Governing Statute
Wills Act 1837
s.20: A will, or any part of it, may be revoked by obliteration, burning, tearing, or otherwise destroying the same by the testator (or by someone in their presence and at their direction) with the intention of revoking it.
s.21: Alterations (e.g., obliterations, interlineations) after execution are not valid unless:
The alteration is executed (signed and attested) like a will, or
The words are no longer apparent (cannot be read), in which case the obliteration is effective without further attestation.
3. Requirements
Intention (animus revocandi): Must be clear that the testator intended to revoke or alter. Accidental damage does not count.
Act: The physical destruction or obliteration must actually occur.
Formalities: If alteration is visible, it must be duly attested; if completely obliterated (unreadable), attestation not required.
4. Case Law
Re Phelan [1972] – If an obliteration does not render the original words completely illegible, the original text remains valid unless alteration is properly attested.
Re Itterson’s Goods (1839) 163 ER 431 – If words can still be read by holding the will up to the light, the obliteration is not valid.
Townley v Watson (1844) 163 ER 893 – “Artificial means” cannot be used to decipher obliterated text; only what is visible normally is considered.
Cheese v Lovejoy (1877) 2 P.D. 251 – For complete revocation by destruction, clear intention is required. Mere tearing without intention may not revoke.
Giles v Warren [2006] EWCA Civ 9 – Affirmed the importance of intention in revocation/obliteration.
Hobbs v Knight (1838) 163 E.R. 267 held that scribbling out the witness’s signature to make it illegible amounts to revocation of the entire will.
5. Practical Application
If obliteration valid (words illegible): Treated as revoked; gift fails; may fall into residue or intestacy.
If obliteration invalid (words legible): Original wording stands.
If obliteration + attestation valid: Altered text replaces original.
6. Exam Tip
Scenario-based questions: Commonly tested in probate fact patterns (e.g., a clause crossed out in the will).
Steps to apply:
Identify whether alteration = revocation by obliteration.
Check if the words are still legible.
If legible → original words stand unless alteration re-executed.
If illegible → obliteration effective without attestation.
Consider whether intention is proven.
Outcome: gift fails / intestacy applies / original wording stands.
Summary
Legible words remain unless alteration re-executed.
Illegible words are revoked even without attestation.
Always prove intention + physical act.
Dependent Relative Revocation
Source of law
Onions v Tyrer (1716) 1 P Wms 343 – classic statement of DRR: revocation conditional on validity of a new will/codicil.
Principle
If a testator revokes a will (or part of it) on the mistaken belief that another testamentary disposition is valid, the revocation is treated as conditional.
If the new disposition fails, the revocation is disregarded and the earlier will/term is revived.
The doctrine prevents unintended intestacy where the testator’s real intent can be inferred.
