How to prevent someone contesting a will

Jan Atkinson

It is fairly rare in my experience for a parent to write a child out of their will, but that is not at all to say it does not happen — clearly, it does. Motivating factors which might encourage such a course of action include:

• another child of the family has looked after the parent in their final years, perhaps lived in the family home, and the estate is not terribly large
• the child has emigrated and not kept in close touch
• the child has married someone who is not popular with the parents

Whatever the reason, if you are concerned your will could be challenged — or if you are an executor or beneficiary already facing a challenge — this guide explains your options.

If you are looking to contest a will yourself, our contesting a will solicitors page covers that process in full.

Can you stop someone contesting a will?

No. Anyone with a potential interest in an estate has the legal right to bring a challenge, and you cannot remove that right entirely. What you can do is make a claim significantly harder to succeed — either by preparing your will carefully from the outset, or by gathering the evidence needed to defend it.

How to protect your will from being challenged

There is no certain way of protecting a will from being challenged, but a clear explanation — either in the will or in a side letter — of the thinking behind the decision can help deter a claim. It should be remembered that a will becomes a public document once probate has been granted. If you do not want a disappointed beneficiary to know the reasons for the decision, the explanation should not appear in the will itself; a separate side letter keeps it private while still putting the reasoning on record.

What is crucial is to ensure the will cannot be challenged on the most common grounds: undue influence or lack of testamentary capacity. The will should be professionally prepared by a solicitor specialising in Wills and Estates, preferably one who is STEP (The Society of Trust and Estate Practitioners) qualified — look for the initials TEP after their name. A STEP-qualified solicitor will create a detailed file note surrounding the making of the will, which provides strong evidence to resist any future claim.

Steps to take when making your will:

• Instruct a specialist Wills solicitor to draft your will, rather than an unqualified will-writer
• If your capacity could later be questioned — for instance if you have early-stage dementia or another cognitive condition — ask your doctor to confirm in writing that you had testamentary capacity at the time the will was made
• Keep your will in a safe place and destroy any previous versions
• Tell your executors and loved ones where to find the latest copy

What is a no-contest clause in a will?

A no-contest clause (sometimes called a forfeiture clause) states that if a named beneficiary challenges their inheritance, they forfeit whatever they were due to receive. The intention is to deter opportunistic claims by making the cost of losing a challenge higher.

Whether such a clause would stand up in court is not guaranteed — English law does not enforce no-contest clauses as rigidly as some other jurisdictions — but in practice it can be sufficient to discourage a claimant who is weighing up the risk. For the clause to be meaningful, the beneficiary must be receiving at least something under the will, and the clause must clearly state what happens to the gift if it is challenged.

If this is something you want to include, it should be drafted carefully by a solicitor who understands how such provisions are interpreted.

Defending a will against a challenge

If someone has threatened to contest a will you are responsible for as executor, or a will you stand to benefit from as a beneficiary, you need to act promptly. Here is what defending a will typically involves.

Respond to any Larke v Nugus request

When a potential claimant suspects a will may be invalid, their solicitors will often send a Larke v Nugus letter — a formal request for the file notes, attendance notes, and correspondence held by the solicitor who drafted the will. This is standard practice. You should pass any such request immediately to the solicitor who prepared the will; how that file note reads will significantly affect whether a claim proceeds.

Gather supporting evidence

Strong defences are built on contemporaneous evidence: medical records confirming capacity at the time the will was made, notes from the drafting solicitor’s meetings with the testator, witness statements, and correspondence. The more thorough the preparation at the drafting stage, the stronger the defence.

Seek early legal advice

If you receive a formal challenge or a caveat is entered at the Probate Registry — which stops probate being granted and freezes the estate — you should instruct a specialist contentious probate solicitor immediately. An early, well-evidenced response often leads to settlement without the need for litigation.

Consider mediation

The majority of contested will cases settle before they reach court. Mediation is usually far quicker and less costly than proceedings, and courts expect parties to consider it before litigating. A solicitor experienced in defending wills will advise whether settlement is the right approach or whether the case is worth defending fully.

Related reading: Evidence Needed When Contesting a Will

Common scenarios: when adult children challenge a will

The most frequent will disputes involve adult children — particularly where the estate has not been divided equally between siblings, or where one child received a larger share in recognition of the care they provided.

The caregiver scenario

Where one child has lived with and cared for an elderly parent while a sibling lived elsewhere — sometimes abroad — it is not unusual for the parent to reflect that in their will. The absent sibling may feel this is unfair. In my experience, many children expect to be treated equally regardless of how much they contributed to a parent’s care. If you are in this position, a clear letter of wishes explaining the decision, drafted at the time the will was made, is the most effective protection.

The estranged child

An estranged child who has had little contact for many years can still bring a claim, particularly under the Inheritance (Provision for Family and Dependants) Act 1975 if they can establish financial dependency. A well-prepared will with supporting documentation is the best defence; your solicitor can advise on what records to keep.

Open conversations with family

Where possible, open discussions between parents and children about how assets are to be passed on can remove unpleasant surprises at an already emotional time. The risk is that it prompts a campaign from a disappointed child to change the parent’s mind — and that is not always a prospect parents welcome. But it can help a disinherited child understand the reasoning, which sometimes is enough to prevent a formal challenge.

Related reading: What to Do When Someone Dies

How we can help

Whether you are making a will and want to minimise the risk of a future challenge, or you are an executor or beneficiary already facing a dispute, our specialist private client team can advise you.

Are you looking to challenge a will rather than defend one? Our contesting a will solicitors explain the process, timelines, and costs in full.

To speak with one of our solicitors:j

• Fill in our online enquiry form
• Call us on 020 7485 8811