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Contesting a Will / Contentious Probate

Also known as: Will Challenge, Probate Dispute, Will Contest

Definition

Contesting a will (contentious probate) is the legal process of challenging a will's validity or claiming financial provision from an estate when someone believes the will is invalid, improperly executed, or fails to provide adequately for dependents.

Understanding contentious probate is crucial because will disputes are increasing due to aging population, dementia-related capacity issues, complex family structures, and intergenerational wealth transfers—knowing your rights and the legal grounds required protects both testators creating wills and families navigating inheritance disputes.

What Does Contesting a Will / Contentious Probate Mean?

Contentious probate refers to disputes relating to a will's validity, interpretation, or the distribution of an estate, handled through court proceedings under Civil Procedure Rules Part 57 rather than the standard administrative probate process. Under the Non-Contentious Probate Rules 1987, "no grant shall be made by a district probate registrar in any case in which there is contention, until the contention is disposed of." This means when a will is challenged, the entire probate process stops until the dispute resolves. Contentious probate encompasses two distinct categories: validity challenges (questioning whether the will is legally valid) and financial claims (seeking reasonable provision under the Inheritance Act 1975).

Validity challenges are based on five main grounds. First, lack of testamentary capacity—the deceased didn't have mental ability to make the will. The Banks v Goodfellow (1870) test requires the testator to understand the nature of making a will, know the extent of their property, comprehend who should reasonably benefit, and not be influenced by mental disorder affecting their decisions. Second, undue influence or coercion—someone pressured the testator into making the will against their free will, though this requires a high evidential burden and the Law Commission identified in 2024 that undue influence is too difficult to prove, leaving vulnerable people inadequately protected. Third, improper execution—the will wasn't signed correctly under the Wills Act 1837 requirements. Fourth, fraud or forgery—the will or testator's signature is fake. Fifth, lack of knowledge and approval—the testator didn't understand the will's contents. For validity challenges, there's no time limit to bring claims, though evidence becomes harder to gather as time passes.

Financial claims under the Inheritance (Provision for Family and Dependants) Act 1975 allow eligible claimants to seek reasonable financial provision even when a will is valid. Eligible claimants include spouses, former spouses, children, cohabitees who lived with the deceased for at least two years before death, and anyone the deceased maintained. Courts consider the claimant's financial needs, estate size, the deceased's obligations, and other beneficiaries' needs when determining reasonable provision. The critical difference is time: Inheritance Act claims must be brought within six months of the grant of probate. After this deadline, court permission is required and rarely granted except in exceptional circumstances. To begin contentious probate proceedings, challengers typically enter a caveat at the probate registry (costing £3, lasting six months, extendable), which prevents the grant of probate being issued. If the dispute proceeds, parties file court claims using Form N2, and cases are assigned to the Chancery Division. Costs are substantial—negotiated settlements typically cost £10,000-£25,000 plus VAT, while taking cases to trial can cost £60,000-£100,000 or more. Each party pays their own costs initially, and the losing party typically pays the winner's costs—estate funds don't automatically cover challenge costs as they would for non-contentious probate administration expenses.

Common Questions

"What are the most common grounds for contesting a will in the UK?" The most common grounds include lack of testamentary capacity (the deceased didn't have mental capacity to make the will), undue influence or coercion, improper execution (not signed correctly under the Wills Act 1837), fraud or forgery, and lack of knowledge and approval (the deceased didn't understand the will's contents). You can also make a financial claim under the Inheritance Act 1975 if you're an eligible claimant who hasn't received reasonable financial provision.

"How long do I have to challenge a will in England and Wales?" Time limits vary by claim type. For validity challenges (capacity, undue influence, forgery), there's no time limit—you can challenge at any time, though evidence becomes harder to gather over time. For Inheritance Act 1975 claims seeking financial provision, you must apply within 6 months of the grant of probate. After this deadline, you need court permission, which is only granted in exceptional circumstances.

"How much does it cost to contest a will, and who pays?" Costs vary significantly depending on case complexity. Simple negotiated settlements may cost £10,000-£25,000 plus VAT, while taking a case to trial can cost £60,000-£100,000 or more plus VAT and disbursements. Each party pays their own costs initially, and the losing party typically pays the winner's costs. However, contentious probate cases don't automatically use estate funds—costs rules are the same as other civil litigation.

Common Misconceptions

Myth: "I can contest a will just because I've been left out or think it's unfair"

Reality: You cannot challenge a will simply because you disagree with it or feel the distribution is unfair. English law upholds testamentary freedom—the right to leave assets to anyone you choose. To challenge a will's validity, you need specific legal grounds: lack of capacity, undue influence, improper execution, fraud, or lack of knowledge and approval. For financial claims under the Inheritance Act 1975, you must be an eligible claimant (spouse, child, cohabitee, or dependent) and demonstrate the will fails to make reasonable financial provision for you based on your relationship and needs—mere exclusion isn't sufficient.

Myth: "If I challenge a will, the costs will automatically be paid from the estate"

Reality: Contentious probate follows standard civil litigation costs rules—each party pays their own legal fees initially, and the losing party typically pays the winner's costs at the end. Estate funds do not automatically cover challenge costs, unlike non-contentious probate where executor fees and solicitor costs come from the estate. If you lose a contentious probate case, you could be personally liable for both your own costs (£10,000-£100,000+) and the other side's costs. This makes no-win-no-fee arrangements attractive but challenging to secure, as solicitors assess the strength of your case before agreeing to deferred payment terms.

  • Caveat: The formal procedural mechanism to stop probate being granted while you prepare a will challenge—costs £3, lasts six months, and prevents the probate registry from issuing a grant until the dispute is resolved.
  • Testamentary Capacity: The most common ground for challenging a will's validity, requiring the testator to meet the Banks v Goodfellow test of understanding the nature of making a will, extent of property, who should benefit, and freedom from mental disorder.
  • Undue Influence: A challenging validity ground requiring evidence of actual coercion that overpowered the testator's free will—the Law Commission found in 2024 this is too difficult to prove, inadequately protecting vulnerable people.
  • Inheritance Act 1975: The statutory framework enabling eligible claimants to seek reasonable financial provision from an estate separate from validity challenges, with a critical six-month deadline from grant of probate.
  • Probate: The broader administrative process—contentious probate disputes prevent standard probate grants from being issued, governed by different rules (Civil Procedure Rules Part 57 vs Non-Contentious Probate Rules 1987).
  • Executor: The person who may need to defend the will against challenges, must remain impartial, or can themselves be removed through contentious probate proceedings for misconduct or inability to act.
  • Beneficiary: Those named in the will typically oppose challenges as their inheritance is at stake, while beneficiaries under previous wills or intestacy rules may support challenges to restore their entitlement.

Need Help with Your Will?

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Legal Disclaimer:

This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.