Contested Probate: Challenging a Will or an Executor

Disputes arising from wills and the administration of estates — collectively known as contentious probate — cover a range of situations: challenging the validity of a will, bringing a claim for financial provision from an estate, removing an executor who is not performing their duties, and disputes between beneficiaries about how an estate is being administered.

Challenging the validity of a will

A will can be challenged on four main grounds. Lack of testamentary capacity — the person lacked the mental capacity to make a will at the time they signed it, under the test set out in Banks v Goodfellow. Lack of knowledge and approval — the person did not know and approve the contents of the will. Undue influence — the person was pressured or coerced into making the will in a way that overrode their own wishes. Fraud or forgery — the will is a fabrication or contains fraudulent alterations.

Undue influence

Undue influence in the will context is different from contractual undue influence. There is no presumption of undue influence between family members — you must prove that the will-maker’s free will was overcome by the pressure exerted. Evidence typically comes from medical records showing vulnerability, witness accounts of the relationship between the testator and the alleged influencer, and the circumstances in which the will was made.

Inheritance Act claims

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of person to apply to court for reasonable financial provision from an estate, even if the will makes no provision or inadequate provision for them. Eligible applicants include spouses and civil partners, former spouses not remarried, cohabitees of at least two years, children, and those maintained by the deceased. Claims must be brought within six months of the grant of probate.

Removing an executor

An executor who refuses to act, is incapable, has a conflict of interest, or is administering the estate badly can be removed by the court and replaced. The court can also pass over a named executor before a grant of probate is issued. If an executor is wasting estate assets or failing to distribute within a reasonable time — typically one year from death — the court has power to order them to proceed or to substitute a different administrator.

Lodging a caveat

If you believe a will is invalid and want to prevent probate being granted while you investigate, you can lodge a caveat at the Probate Registry. This costs £20 and is valid for six months, renewable. Once a caveat is in place, no grant of probate can be issued without your knowledge, giving you time to gather evidence and take legal advice. If the executor wants to proceed, they must issue a warning, and you must enter an appearance within 14 days or the caveat lapses.