Can you challenge the validity of a will when the testator is still alive?

This is a question we, as a team, have seen arise more and more frequently. Here’s our summary guide.

Answer: No*

Under normal circumstances, it is not possible to challenge the validity of a will while the testator is alive. The simple reason is that a testator, during their lifetime, has the ability to amend, revoke or destroy their will, as they see fit. A will speaks from the date of death: therefore any formal challenge will occur after the testator’s death.

*Exception: Statutory Wills

The main exception relates to statutory wills. These are wills to be approved by the Court of Protection, drawn up on behalf of an individual who lacks mental capacity during their lifetime. Parties impacted by the terms of a proposed statutory will, for example, close family members who would be intestacy beneficiaries if the statutory will were not approved, or beneficiaries under an existing will, can challenge the proposed statutory will before the Court of Protection.

Options during lifetime

However, beyond the limited scope of statutory wills, the fact that a testator has not died, may not stop interested parties from seeking to explore their options, when they may find out that a will has been altered during the testator’s lifetime.

1. Suspected lack of testamentary capacity

If there are concerns regarding a testator’s testamentary capacity during their lifetime, it may be possible to ask the testator to submit themselves to a health care professional’s assessment, with reference to the Banks v Goodfellow [1870] test. Private client practitioners should of course be aware of this good practice when taking instructions from testators in their advancing years. However, there is no requirement for a testator to agree, whether during the will drafting process or later, at the request of an interested party.

2. Concerns regarding undue influence

Where suspected undue influence is being applied upon the testator during their lifetime in relation to their testamentary wishes, practical options may involve making appropriate safe guarding reports to any applicable bodies who may have the authority to investigate depending on the circumstances (i.e. Social Services / Office of the Public Guardian etc).

Typically, where suspected undue influence is being applied, the influencer may seek to isolate the testator from their family and friends: breaking that pattern of behaviour could help to remedy the situation.

Conclusion

At the end of the day, during any formal will challenge, the testator is not available to provide their own view, so evidence gathered during their lifetime may well assist any prospective claim.  

At Aaron & Partners, our expert and specialist contentious trusts and probate team are well placed to support you.