Contesting a will in England and Wales

Losing a family member is hard enough. Discovering that their will does not reflect what you believed they wanted, or that you have been left with nothing despite depending on them financially, adds a painful legal dimension to an already difficult time. Contentious probate, the area of law that covers disputes about wills and estates, is a specialist field, and getting early advice from the right person can make a significant difference to how your case unfolds.

Can you actually contest a will?

Not every disagreement about an estate amounts to a legal challenge, and contentious probate claims are not guaranteed to succeed simply because someone feels the outcome is unfair. The law recognises two broad routes for challenging what happens to an estate after death: attacking the validity of the will itself, and making a claim under the Inheritance Act where a valid will (or no will at all) leaves someone without adequate financial provision. These are distinct claims, and in some cases a claimant may pursue both.

Grounds for challenging the validity of a will

A will is a legal document, and the courts will uphold it unless there is a specific legal reason not to. The recognised grounds for a validity challenge are relatively narrow.

Lack of testamentary capacity

The person making the will (the testator) must have had the mental capacity to do so at the time of signing. This means they needed to understand the nature of making a will, the extent of their property, the people who might reasonably expect to benefit, and the effect of the document they were signing. Where the testator was suffering from dementia, a serious psychiatric illness, or the effects of medication, their capacity may be in question. Medical records and expert evidence are central to these claims.

Undue influence

Undue influence arises where someone pressured or coerced the testator into making a will that does not reflect their genuine wishes. The pressure does not have to be physical: sustained emotional manipulation, threats, or the exploitation of a position of dependency can all be relevant. These claims are difficult to prove, partly because the key witness is no longer alive, and the courts require clear evidence rather than suspicion. That said, suspicious circumstances, such as a significant change of instructions late in life shortly after a new carer or partner entered the picture, can support a properly evidenced challenge.

Lack of knowledge and approval

Even if a testator had capacity, they must have known and approved the contents of the will. Where a beneficiary was closely involved in preparing the document, or where the testator could not read it, the court will look carefully at whether the testator genuinely understood what they were signing.

Want of due execution

A will must be signed by the testator in the presence of two witnesses, who must both sign in the testator’s presence. Failures in this formality can render the will invalid, although some technical defects can be cured.

Fraudulent calumny and fraud

Where someone deceived the testator about another person, causing them to exclude that person from the will, this is known as fraudulent calumny. Outright fraud, such as a forged will or forged signature, is also a ground for challenge and in serious cases may involve the police as well as civil proceedings.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975

Even where a will is entirely valid, the Inheritance Act allows certain categories of people to apply to the court for reasonable financial provision from the estate. This route is available whether the deceased left a will or died intestate.

Who can claim?

The Act restricts who may apply. Eligible claimants include the deceased’s spouse or civil partner, a former spouse or civil partner who has not remarried, a child of the deceased (including adult children), a person treated as a child of the family, and anyone who was being maintained by the deceased immediately before death. Each category is assessed differently, and the standard applied to a surviving spouse is more generous than that applied to adult children or other dependants.

What the court considers

The court has a wide discretion and will look at a range of factors: the size of the estate, the claimant’s financial needs and resources, the needs of other beneficiaries, the nature and length of the relationship, any contributions the claimant made (financial or otherwise), and any disability. There is no automatic entitlement, and adult children in particular face a higher hurdle than a surviving spouse.

Time limits matter

Inheritance Act claims must ordinarily be issued within six months of the grant of probate. This deadline is strictly applied, and while the court has a discretion to allow late claims, that discretion is exercised sparingly. If you think you may have a claim, taking advice promptly is important.

The costs and practicalities of contentious probate

Contentious probate litigation can be expensive and emotionally draining. Many cases settle before trial, often through mediation or negotiation, and reaching a negotiated outcome is frequently in everyone’s interests. However, the strength of your legal advice and representation directly affects whether you achieve a fair settlement or end up accepting less than you should.

Legal costs in this area vary considerably depending on the complexity of the case, the value of the estate, and how far proceedings go. Many wills and probate barristers will give a realistic costs estimate at the outset. Conditional fee arrangements (sometimes called no-win-no-fee agreements) are available in some Inheritance Act claims, though not universally, and you should ask about funding options early.

Where a case is particularly complex, involves allegations of fraud, or requires managing a full trial, a solicitor may be the appropriate lead professional, with a barrister instructed alongside them. Honest early advice will tell you which structure suits your situation.

How a direct access barrister can help

Many people assume that instructing a barrister requires a solicitor as an intermediary. That has not been the case for some years. Under the direct access scheme, members of the public can instruct a barrister directly for advice, drafting, and in many cases advocacy, without needing to go through a solicitor first.

In contentious probate matters, a direct access barrister can advise you on whether you have a viable claim, the likely strength of the grounds, what evidence you will need, and the realistic prospects. They can draft the legal documents required to commence proceedings, advise on mediation, and represent you in court if the case goes that far. For disputes where the core issue is a legal one, cutting out an intermediary layer can reduce cost and speed up the process of getting a clear answer.

Direct access is not always the right model. If the matter requires significant investigation, management of a large volume of documents, or ongoing correspondence with multiple parties over months, a solicitor-led team may serve you better. A good barrister advising on direct access will tell you honestly if that applies to your case.

What to do next

If you believe a will is invalid, or that you have been left without adequate provision from an estate, the first step is to get an informed legal opinion before taking any action. Estates can be distributed quickly once probate is granted, and delay reduces your options.

You can submit a free initial enquiry to speak with a specialist direct access barrister in wills, trusts, and probate. There is no obligation, and even a short early conversation can clarify whether you have a claim worth pursuing and what it is likely to involve.