The Executor’s Dilemma: Can You Challenge the Will?

27 January, 2026 4 minutes reading time

In this blog, we explore a common concern for executors: whether a Will is truly valid. We look at the legal concepts involved and the potential risks an executor might face. Imagine a typical situation: someone is named as an executor in a Will, but as they review the document or consider how it was created, they start to suspect something isn’t quite right. Maybe they think the person who made the Will wasn’t mentally capable, or they wonder whether someone else pressured the person who made the Will (known as the testator).

It’s natural to question whether the person defending the Will can also be the one challenging it. The answer is a careful “yes,” but doing so can entail significant legal challenges and professional risks.

The Executor’s Dual Identity

When you’re named an executor, you take on two roles. On a personal level, you might be a beneficiary or a family member. Professionally, you act as a fiduciary.

As a fiduciary, your primary responsibility is to the estate. This usually means following the instructions in the Will. Consequently, challenging the document you were appointed to protect creates a direct conflict of interest. Handling the situation with care is therefore essential.

Grounds for a Challenge

An executor has the right to challenge a Will in England and Wales, just as anyone else with a vested interest can. Recent cases have tested some grounds for a challenge in court:

1. Lack of Testamentary Capacity

Lack of testamentary capacity means that the testator lacks the necessary mental capacity to create or amend a valid Will at the time of signing. It indicates an inability to understand the nature of the act, their assets, or who should inherit. This may be due to dementia or illness. In Leonard v Leonard [2024] EWHC 321 (Ch), the court set aside the Will for this reason, even though a professional had drafted it.

2. Undue Influence

This happens when someone pressures or coerces the deceased into signing the Will. This was recently examined in Jenkins v Evans [2024] EWHC 2730 (Ch), which focused on family pressure and the importance of neutral executors.

3. Improper Execution

When a Will doesn’t comply with legal requirements, such as the absence of the necessary witnesses, grounds for a legal challenge arise.

4. Fraud or Forgery

Fraud or forgery happens when a Will is forged or founded on intentionally misleading statements made to the deceased.

The Risks of  “Renouncing” Your Role

If you decide to challenge the Will, bear in mind that you usually can’t remain the executor. Courts view this as a “breach of duty”. To proceed, you typically need to:

1. Renounce Your Appointment

Step down and decline to act as the executor.

2. File as an “Interested Person”

Approach the court as a beneficiary or claimant rather than as an estate representative.

Attempting to challenge the Will while still serving as executor may lead the court to remove you, and you could also be held liable for delaying the probate process.

Strategic Considerations

Action	Outcome
Remain Executor	You must defend the Will, even if you doubt its validity. To avoid personal liability for costs, you must remain strictly neutral and allow the beneficiaries to fight the legal battle themselves.
Challenge the Will	You must resign (renounce), lose control of the estate, and pay your own legal fees. If the court rules against you, you risk being ordered to pay the other side’s costs as well.
Neutrality	You can ask the court for "directions" if the Will is ambiguous, or its validity is in question. If the court grants these directions, your legal costs are typically a legitimate expense to be paid for by the estate.

Practicalities

Before signing a Deed of Renunciation and surrendering your authority, gather all necessary evidence. Search for earlier versions of the Will, as the estate usually reverts to the previous valid version if the current one is invalidated. Look for signs of confusion or illness around the signing date.

Request information from the person who drafted the Will. However, be cautious, as courts do not tolerate delays. In Addison v Niaz [2024] EWHC 3124 (Fam), a professional was ordered to pay over £5,700 in costs for failing to provide information promptly.

Our Advice

An executor can challenge a Will, but they usually cannot do it while holding the keys to the estate. If you believe a Will is invalid, act quickly. The courts demand transparency, and ‘sitting on the fence’ can result in substantial costs being personally imposed on you.

If you need advice or information, please don’t hesitate to contact us. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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