Grounds for contesting a Will

Grounds for contesting a Will

The loss of a loved one is an emotionally distressing time but with the value of estates increasing and becoming ever more complex it is no surprise there has been a significant increase in the number of inheritance disputes with several high-profile challenges being reported by the press recently. 

Will Disputes

English law is relatively unusual in recognising the concept of testamentary freedom; other jurisdictions have fixed heirship rules and govern how an individual’s estate will pass. However, this does not mean Wills under English law are exempt from challenge.

There are many examples of challenges to Wills that can be cited. These range from the technical (the Will was not properly executed) to challenges that the Will does not make reasonable financial provision for those to whom the deceased owed an obligation.

Here are just a few common challenges to Wills:

  1. The Will has not been properly executed;
  2. The deceased did not have the mental capacity to execute the Will;
  3. Lack of knowledge and approval;
  4. Undue influence;
  5. Fraud

The Will has not been properly executed

A challenge to a Will on this ground occurs when the legal formalities for making a Will are not observed.

The standard formalities for executing a Will are set out in section 9 of the Wills Act 1837 and these include:

  • The Will must be in writing and must have been signed by the deceased (or another could have signed it but it must have been in the presence of the deceased and at their clear direction)
  • The deceased must have signed it with the intention of creating a valid Will;
  • The signature must have been made or acknowledged in the presence of at least two witnesses present at the same time; and
  • Each witness must have signed the Will in the presence of the deceased.

If any of the above are not met, the Will may be invalid.

Mental Capacity

A person must be of sound mind when making a Will. If a person does not have the mental capacity at the time of execution the Will may be the subject of challenge.

Lack of knowledge and approval

The deceased must have been aware of the content of their Will. If it can be established the deceased did not know the content or approve the content of their Will it is open to challenge.

Where a Will was executed by the deceased correctly and provided the deceased had the necessary mental capacity then knowledge and approval will be presumed.

However, issues of knowledge and approval can arise for certain categories of persons and in these circumstances the Court will require sufficient evidence to prove they understood and approved the content of their Will. This includes, for example, those who are blind, deaf or illiterate.

Similarly, where a Will has been executed in circumstances which give rise to suspicion the Court will want evidence to dispel any doubt. Each case will turn on its fact but examples of situations which may excite the suspicions of the Court are:

  • where the terms of the deceased’s Will do not correspond with what they said to others about their estate after its execution;
  • where the deceased had comprehension difficulties and/or English is not their first language;
  • the execution of the Will was not supervised by a solicitor

Undue Influence

A challenge to a Will on the grounds of undue influence will occur when the deceased was coerced into making a Will they do not wish to make. The coercion can take the form of threats and manipulation as well as physical harm.

In cases of a Will there is no presumption of undue influence and to prove undue influence there must be clear evidence. The bar for establishing undue influence is, therefore, a high one and whilst not impossible successful challenges are rare.


If the true intentions of the deceased are not contained within the Will it may be possible to challenge the Will on the ground of fraud.

Examples of fraud include circumstances where somebody else impersonated the deceased in order to execute a Will or where the deceased was deceived into making a Will on certain terms based on a false premise.

Unlike undue influence fraud does not involve a degree of coercion but, like undue influence, fraud can be difficult to prove not least of all because the deceased will not be able to give evidence.

Contesting a Will

To try to avoid any disputes it is advisable to make sure your Will is prepared by an experienced solicitor and that it is kept up-to-date.

However, disputes over Wills do and will arise and if you feel that you have grounds to challenge a Will then it is important to act quickly before the estate is distributed and because certain challenges are subject to strict time limits.

Colman Coyle has considerable experience in advising in relation to the preparation of Wills and experience dealing with inheritance disputes.


If you would like to discuss any of the issues raised here, please contact Adam Palmer on +44 (0)207 354 3000 or


Colman Coyle attend the highly successful IR Global annual conference in Barcelona

Colman Coyle attend the highly successful IR Global annual conference in Barcelona

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Howard Colman, Oksana Howard and Adam Palmer have recently returned from Barcelona where they represented Colman Coyle at the annual IR Global conference.

The conference was a great success bringing together around 350 legal and financial professionals from around the globe.

This was Adam’s first IR conference as part of the Rising Stars programme and gave him a great opportunity to meet and develop connections with other young lawyers involved in international work.

A highlight of the conference for Colman Coyle was the award of the IR Global Member of the year to Howard after a vote of the whole IR Global membership of more than 1300 members.

For Oksana the conference was a great opportunity for her to strengthen relationships with existing members and make new connections through her role as a Committee Member of the M&A Committee.

Colman Coyle are pleased to have been members of IR Global since it’s inception and look forward to many more years working together.

Howard Colman, Oksana Howard & Adam Palmer are travelling to Barcelona for the 2022 IR Global annual conference

Howard Colman, Oksana Howard & Adam Palmer are travelling to Barcelona for the 2022 IR Global annual conference

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Following the highly successful 2022 IR Global conferences in Washington and Zurich, Colman Coyle are delighted to attend the annual conference in Barcelona next week. The firm will be represented by Howard Colman, Oksana Howard and a new IR Global Rising Star member Adam Palmer.

Howard is the exclusive IR Global member for Commercial Litigation & Commercial Arbitration in England and a long standing member of the IR Dispute Resolution Committee.

Oksana is the exclusive IR Global member for Capital Markets in England and a member of M&A Committee at IR.

Adam is a Senior Associate in our Dispute Resolution department and recently joined IR Global as a Rising Star member. The Rising Star programme will provide Adam the opportunity to get involved in cross border dispute resolution work along with growing his own international network. Adam’s membership of IR Global will further strength our international department, enhancing our global outreach and ability to advise clients.

Colman Coyle have made a substantial contribution to the development of the organisation and through our membership can service our clients’ legal and commercial requirements worldwide by regularly working with professionals in over 150 countries.

Howard, Oksana and Adam are looking forward to attending the annual conference in Barcelona and networking with professionals from jurisdictions around the world, many of whom we have met before and work closely together on cross referral work.

Successful judicial review for financial advisors

Successful judicial review for financial advisors

Colman Coyle were recently instructed by a firm of independent financial advisors to challenge a final decision issued by the Financial Ombudsman Service (“the FOS”).

The complaint brought before the FOS concerned the setting up of a Self-Invested-Personal Pension by the firm to facilitate the transfer of some of their client’s personal pension plans into an overseas Caribbean complex on an insistent client basis.

The overseas scheme since fell into trouble and the client complained to the FOS that the firm should compensate him for his loss.

The complaint alleged serious failings on the part of the firm all of which the firm strenuously denied. Despite this the FOS upheld the complaint and the firm was ordered to compensate their client the value of his loss.

Unlike a Court, a determination made by the FOS does not need to be in accordance with the law of England provided its “fair and reasonable” and the FOS now has the power to make awards up to £350,000 for complaints which took place on or after 1st April 2019. These awards are then enforceable as if a Court Judgment.

This decision had serious implications for the advisors.

The firm approached Adam Palmer to take the case on. Mr Palmer engaged with the FOS and requested that it quash its final decision. It soon became clear, however, that the FOS would not quash its decision so judicial review proceedings were commenced in the High Court.

Despite the FOS initially refusing to quash its decision, soon after the proceedings were served the FOS indicated that it did not intend to contest the claim.

The decision was subsequently quashed and after reconsidering the complaint we are pleased to say the FOS has not upheld it.

If you are considering a judicial review of a decision issued by the FOS it is important that you act quickly because the claim must be filed ‘promptly’ and in any event not later than three months of the final decision having been made.

If you have a dispute with a financial advisor and require advice or you are a financial advisor requiring advice about a complaint brought by a client please contact Adam Palmer on 0207 704 3418 or for information on how we can assist.

Adam Palmer

Adam Palmer


Coronavirus Act 2020 – Business Tenancies

Coronavirus Act 2020 – Business Tenancies

The government have now enacted provisions to prevent forfeiture claims being brought against businesses as a result of the crisis.

From the 26 March 2020 to 30 June 2020 (the “relevant period”), a landlord’s right of re-entry or forfeiture arising from non-payment of rent cannot be enforced. The relevant period can be extended beyond 30 June 2020 by the Secretary of State.

Conversely, during the relevant period, a landlord cannot be said to have waived his or her right of re-entry or forfeiture, unless it is done expressly in writing.

The result of these provisions is that from 26 March 2020 until 30 June 2020, no order for possession can be enforced and any order for possession made during that period must take effect after 30 June 2020.

During the relevant period, businesses affected by the crisis may be unable to pay their rent. Previously, under the Landlord and Tenant Act 1954, landlords could oppose the grant of a new lease protected by that Act by asserting the ground under section 30(1)(b) i.e. that there has been a  persistent delay in paying rent which has become due. The Coronavirus Act provides that any failure to pay rent during the relevant period is to be disregarded under the Landlord and Tenant Act 1954.

While the proposals grant tenants welcome protection during these difficult times, it does leave landlords with mounting rent arrears which may affect their ability to pay their own mortgages and outgoings. The Government has said that a mortgage holiday will be provided by lenders and the Financial Conduct Authority has produced guidance on this issue.

Coronavirus Act 2020 – Residential Tenancies

Coronavirus Act 2020 – Residential Tenancies

On 18th March 2020, the Government issued a press release stating that emergency legislation would be introduced to “suspend new evictions from social or private rented accommodation while this national emergency is taking place” and “no new possession proceedings through applications to the court to start during the crisis”.

The Coronavirus Act (“the Act”) entered into force on 25 March 2020. The Act refers to a relevant period within which these provisions will apply. That period is defined as beginning on 26 March 2020 and ending on 30 September 2020.

The Act applies to a variety of tenancies: Protected and Statutory; Secured; Flexible; Assured; Assured Shorthold; Introductory; and Demoted. For all these the Act extends the notice period for commencing possession proceedings to three months.

The three-month notice period can be extended to up to six months, but not above six months. This period can be changed multiple times.

A possible issue with this variation is that if the notice period is changed to six months, there is no provision for varying notices already served using the three-month period. It seems likely that such a notice would still be valid. In that case, proceedings would commence at the end of the three-month period but would still be within the now six-month notice period.

During the three-month notice period, any rent arrears that accrue can still be used as grounds for possession proceedings once the relevant period comes to an end. The Act merely changes when these proceedings can take place. Tenants who have lost their income due to the crisis will still be the subject of a possession claim.

This is particularly notable as the Act provides a solution to this issue for business tenancies. For the purposes of making out the ground of persistent delay in paying rent which has become due under the Landlord and Tenant Act 1954, any failure to pay rent during the relevant period is to be disregarded.

On top of this, the Act makes no provision for notices validly served prior to the passage of the Act. A notice validly served prior to the Act becoming law will be valid and will lead to new proceedings during the relevant period. Some of which, no doubt, will have been caused by the Coronavirus crisis. This is, of course, subject to Courts being able to hear such claims.