Grounds for Contesting a Will

A death in the family is always a momentous event, and emotions can often run high. An unwanted source of additional anguish can be if the death reveals a will that family members who may have expected to benefit perceive as being unfair or just plain wrong. If you are concerned about the validity of a will, understanding the grounds for contesting a will in England and Wales is an important first step. A will may be formally invalid if it was not executed in accordance with the statutory requirements. Proper execution is most easily demonstrated by showing that the will was signed by the testator in the presence of two witnesses who then sign in his/her presence.

What are the grounds for contesting a will in England and Wales?

Broadly, there are four principal grounds for contesting a will: lack of testamentary capacity, want of knowledge and approval, undue influence (coercion), and fraud or forgery. If concerns exist, it is wise to seek specialist legal advice promptly. A first step is often to enter a caveat at the probate registry to prevent the extraction of a grant of probate. For further information on the probate process, GOV.UK provides guidance on applying for probate.

Lack of testamentary capacity as a ground for contesting a will

What counts as testamentary capacity?

This focuses on whether the person making the will understood, at the time, the nature and effect of a will, the extent of their property, and the claims of those who might expect to benefit.

Signs that capacity may have been absent

Capacity can fluctuate, particularly with conditions such as dementia, severe illness, or the influence of medication. Red flags include a sudden, unexplained change in beneficiaries, confusion about family members or assets, or evidence of cognitive decline around the time of the will.

Evidence used in testamentary capacity claims

Typical evidence includes medical records, GP and consultant notes, capacity assessments, hospital discharge summaries, and testimony from those who knew the person’s mental state. A solicitor’s attendance notes, drafts, and file correspondence are often central. Practical steps include obtaining and preserving the will file and medical records, and identifying witnesses who can speak to the person’s understanding at the relevant time. Time is often sensitive in probate disputes, so do not delay in seeking advice.

Want of knowledge and approval

What does knowledge and approval mean in practice?

Even if a person had capacity, the will is only valid if they knew and approved its contents. This is about whether they understood what was written and intended the outcome.

When might this ground for contesting a will arise?

Concerns commonly arise with homemade wills, complex dispositions, language barriers, or where the main beneficiary helped prepare the will or arranged the appointment. Red flags include a beneficiary present at meetings, unusual or inconsistent provisions, or the will departing sharply from prior patterns without clear explanation.

Evidence to support a knowledge and approval challenge

Useful evidence includes the drafting solicitor’s file (instructions, attendance notes, confirmation of reading-over, and any checklists), earlier wills, correspondence showing the person’s wishes, and witness statements from those present at execution. Practical steps include obtaining the full will file and any prior wills quickly, preserving electronic communications, and exploring whether the will was read aloud, translated, or explained in plain terms. Early collection of evidence helps test whether the testator truly understood and approved what they signed.

Undue influence as a ground for contesting a will

What is undue influence in will disputes?

Undue influence in wills means coercion that overbears the testator’s free will, not merely persuasion or appeals to emotion. It is often exercised privately, making proof challenging.

Warning signs of coercion

Red flags include isolation from family, dependence on a single carer or relative, secrecy around the will-making process, and a beneficiary controlling access to professionals.

How undue influence is evidenced

Evidence typically involves witness accounts of behaviour and circumstances, patterns of control or threats, the solicitor’s notes about who gave instructions, and documents showing exclusion of others. Medical evidence of vulnerability can be relevant. Preserve contemporaneous messages and diaries, and move quickly to identify and interview witnesses while memories are fresh.

Fraud, forgery and fraudulent calumny as grounds for contesting a will

What is fraudulent calumny?

Fraud may involve forging a signature or deceiving the testator about facts to secure a benefit. Fraudulent calumny arises where a person poisons the testator’s mind against another with false statements, made knowingly or recklessly, to influence the will.

Red flags suggesting fraud or forgery

Red flags include signatures that look inconsistent, missing or dubious attestation details, and a beneficiary spreading serious, untrue allegations about another potential beneficiary. Technical evidence from document examiners is routinely sought where outright fraud is suspected.

How to start contesting a will

If you have concerns about any of the grounds for contesting a will set out above, it is important to act promptly. A first step is often to enter a caveat at the probate registry to prevent the extraction of a grant of probate while the position is investigated. You can find further guidance on this process on the ACTAPS website.

Speak to a specialist contentious probate solicitor

What is set out above is a very brief summary of some general themes. Our Contentious Trusts and Probate team brings together specialists with many years of experience in this area of law including full members of ACTAPS (Association of Contentious Trust and Probate Specialists). If you require advice on a specific situation that you are involved in, please contact Jason Oliver in the first instance.

We publish blogs and social media posts to give a general overview of legal and commercial issues, relevant at the time of publication, which we hope you will find interesting. Please note that legal rules often change depending on the specific facts of a situation. The law also changes over time following changes in legislation or new court cases. We do not actively update our blogs or posts once they are published to reflect changes in the law.