Contesting a Will

Lack of testamentary capacity: a legal ground to contest a will

Testamentary capacity is the legal term used to describe a person’s mental ability to make or amend a valid will. The person creating the will is known as the testator. If the testator did not have sufficient mental capacity at the time the will was made or changed, the will may be declared invalid.

To have testamentary capacity under UK law, the person making the will must be able to:

• Understand the nature and effect of making a will
• Know the extent of the property they are distributing
• Recognise and consider the claims of those who might expect to benefit
• Not suffer from any mental disorder or delusion that affects their decisions

This legal test often becomes relevant when the testator is elderly or experiencing cognitive decline. A diagnosis of dementia does not automatically mean someone lacks testamentary capacity.

However, if their condition prevents them from understanding key facts, such as how many children they have or whether those children are still alive, this could be strong evidence of incapacity.

Lack of testamentary capacity is one of the most common legal grounds for contesting a will.

Supporting evidence you’ll need to contest a will under testamentary capacity

Supporting evidence may include medical records, witness statements from those who knew the testator at the time, and a lack of proper mental capacity checks by the person or solicitor who prepared the will. When combined, this can form the evidential basis of a successful will challenge.

Contesting a will based undue influence

Undue influence occurs when someone uses pressure, manipulation, or coercion to make or change a will in a way that benefits themselves. It is a serious legal ground for contesting a will because it undermines the testator’s true intentions.

To challenge a will on this basis, it must be proven that the testator was coerced rather than simply persuaded. Courts recognise that undue influence can take many forms, especially in emotionally dependent or vulnerable relationships.

For example, if an elderly adult relies heavily on one of her two sons for care and chooses to leave her entire estate to him. In that case, the will may still be valid, provided she made the decision independently.

However, if that son repeatedly pressured her to change the will and threatened to stop helping her unless she did, this conduct, if proven, could amount to undue influence.

Because undue influence often occurs behind closed doors, evidence typically includes witness statements, patterns of dependency, or sudden changes to the will that disproportionately benefit one person.

When a will lacks knowledge and approval

To be valid, a will must be understood and approved by the person making it. This includes both the content of the will and the effect of their expressed wishes.

When a solicitor prepares a will, it is often read aloud to the testator before signing to ensure understanding. However, this safeguard is not always followed.

If a will is drafted under suspicious circumstances, it may not reflect the true intentions of the deceased, or they may not have fully understood its consequences. In such cases, the will could be open to challenge on the grounds of a lack of knowledge and approval.

For example, if someone gives instructions for a will but never checks or reviews the final document, that could form the basis for a legal dispute.

The testator must know what their will contains and must actively approve it for the document to be valid.

Improper execution of a will: when formalities aren’t followed

A will is only valid if it is executed in accordance with the Wills Act 1837.

This legislation outlines strict formal requirements that must be followed for a will to be legally enforceable.

Specifically, the will must:

• Be in writing
• Be signed by the person making the will (the testator) or by someone else under their direction and in their presence
• Be witnessed by at least two people present at the same time.

While most wills are written on paper, the law does not require this. A will can still be valid even if written on an unusual material, such as cloth, so long as the legal requirements are met.

However, if a will is not properly executed under the Wills Act, it may be considered invalid. In such cases, there may be legal grounds to contest the will.

Contesting a will on the grounds of forgery or fraud

Forgery and fraud are serious legal grounds for contesting a will. If the testator’s signature, part, or all of the will is forged, the will is considered invalid.

Fraud can also arise if the person making the will is misled through lies or false information. For example, if a testator is falsely told something negative about a beneficiary and removes them from the will as a result, this may constitute fraud. This type of manipulation is known as Fraudulent Calumny, where the testator’s mind is deliberately poisoned against someone.

One clear example of forgery would be creating a will without the testator’s permission, signing it on their behalf without consent, and then attempting to rely on that will after their death.

Another example involves a will that was drafted on the testator’s instructions but never signed. If someone else signs that will after the testator’s death, it may be vulnerable to challenge based on forgery or fraud.

Claiming reasonable financial provision from an estate

If you were financially dependent on the deceased before their death, you may be entitled to claim reasonable financial provision from their estate. This right is governed by the Inheritance (Provision for Family and Dependants) Act 1975.

Eligibility depends on your relationship with the deceased and whether they supported or maintained you financially. This may include dependents such as children, cohabiting partners, or other close individuals who relied on the deceased for regular financial support.

For example, if you were in a long-term relationship with the deceased, lived together, and depended on them for housing or bills but were not married, you may still be eligible to make a claim. This is especially the case if the deceased died without a will or left a will that made little or no financial provision for you.

Proprietary estoppel claims in inheritance disputes

While most promises are not legally enforceable, an exception exists under the doctrine of proprietary estoppel. If specific legal criteria are met, the court may enforce a promise about property, even if it was never formalised in writing or included in a will.

To make a successful proprietary estoppel claim, you must show that:

The deceased made a clear promise that you would receive property (or part of it)

• You relied on that promise
• You suffered financial or personal loss because of that reliance
• It would be unfair or unjust for the promise not to be honoured.

These cases often arise in farming or family business contexts. For example, a child might work for years on the family farm without pay based on a promise of future inheritance. If the parent later changes their mind or omits the child from the will, that broken promise may give rise to a proprietary estoppel claim.

Rectification of a will due to clerical error

If a will contains a clerical error, such as a mistake made when typing or copying the testator's instructions - it may be possible to apply to the court for rectification. This allows the wording of the will to be corrected so it reflects the testator's true intentions.

Rectification does not apply when the person drafting the will misunderstood the meaning or effect of the instructions. It applies only to clear clerical mistakes in the document's preparation.

In such cases, the court can order the will to be corrected, ensuring that the final version accurately reflects the testator's original intentions.

How to contest a will

If you believe a will may be invalid, it's essential to gather strong evidence to support your case. The following steps are commonly used when preparing a legal challenge:

Request a copy of the will and will file

If a solicitor prepared the will, ask for the full will file. This may include:

• Notes explaining the reasoning behind the will’s structure
• Whether a mental capacity assessment was carried out
• Who provided the instructions (and whether someone else introduced the solicitor)
• Whether the will was properly signed and witnessed

These details can help identify irregularities that may support a legal challenge.

Request the testator’s medical records

If you suspect the person who made the will had issues with mental capacity, such as dementia or cognitive decline - request their medical records. These may show whether the testator was capable of understanding and approving the will at the time it was made.

Collect witness testimony

In the absence of written evidence, testimony from people close to the testator can be vital. Witnesses may be able to describe:

• The person’s mental state
• Whether they appeared vulnerable
• If someone exerted control or pressure during the will-making process

Such evidence can be key in claims involving undue influence, fraud, or lack of knowledge and approval.

What are the costs to contest a will?

The cost of contesting a will can vary based on several factors, including the complexity of the case, the solicitor's fees, and how far the dispute progresses in the legal process.

Here’s a general breakdown:

• If the issue is resolved early through an initial letter, costs may range from £750 to £2,000.
• If mediation or extended negotiation is required, costs typically increase to around £10,000.
• If the case goes to court, the costs can rise significantly, sometimes exceeding £50,000, depending on the circumstances.

That said, over 95% of inheritance disputes are resolved without going to court.

Types of costs when contesting a will

• Legal fees – Charges for solicitor time, document preparation, legal advice, and representation
• Court fees – Costs for filing claims, attending hearings, and court administrative expenses
• Other expenses – Expert witness reports, medical records, barrister fees, or forensic analysis

We understand that cost clarity is critical. We prioritise transparency and will provide you with a tailored estimate based on your specific situation.

Our goal is to help you resolve disputes efficiently and cost-effectively, while guiding you with legal expertise every step of the way.

Who pays the costs when contesting a will?

In most cases, the person contesting the will, also known as the claimant, is responsible for their own legal costs. These typically include:

• Solicitor’s fees
• Court filing fees
• Other related expenses (e.g. expert reports or barristers)

However, if the case is successful and proceeds to court, the judge may order that the claimant’s legal costs be paid from the deceased’s estate.

In some situations, the court may also require the losing party to pay the other side’s costs. That said, cost recovery is never guaranteed—the court has full discretion when deciding who pays.

It’s important to discuss potential outcomes with your solicitor before beginning a claim, especially if litigation is likely.

What are the time limits to contest a will?

Time limits for contesting a will depend on the type of legal claim you’re making.

In some situations, such as challenges based on fraud, undue influence, or lack of capacity there are no strict deadlines. However, most estates are distributed within 12 to 18 months after death, so it’s crucial to act early. Once assets have been shared, recovering them can become more difficult.

For claims under the Inheritance (Provision for Family and Dependants) Act 1975, such as seeking reasonable financial provision, you must take action within six months of the Grant of Probate (or Letters of Administration, if no will exists).

To protect your rights, it's always best to seek legal advice as soon as possible.

Can you contest a will after probate?

Yes, it is possible to contest a will even after probate has been granted, but doing so can be more difficult. Recovering assets may require additional legal steps if assets have already been distributed.

Whenever possible, it’s best to raise your concerns early. You can enter a legal caveat to temporarily stop the probate process if you suspect the will is invalid. This gives you time to investigate and present your claim before the estate is distributed.

Key steps include:

• Notifying the executor as soon as you become aware of any concerns
• Seeking legal advice to understand your position and options
• Acting quickly—especially before probate or asset distribution occurs

If you wait until after probate is granted, the court may still hear your case, but practical complications are more likely. Every case is unique, so it’s essential to speak with a legal expert to evaluate your situation and advise on the best course of action.

Success rates of contesting a will in the UK

In our experience, over 70% of inheritance disputes pursued by our clients result in a financial benefit, often through negotiated settlement or mediation.

Factors affecting the success of contesting a will

The chances of a successful claim depend on several factors, including:

• The legal grounds for contesting the will
• The strength and quality of the evidence
• The legal strategy used
• How far the case progresses (e.g. mediation vs. court)
• The court’s jurisdiction and how the judge interprets the law

UK courts apply a high standard of proof in these cases, so it’s essential to approach your claim with strong evidence and realistic expectations. Seeking early legal advice can help assess your chances and determine the most effective path forward.