Contentious Probate: What Happens When a Will Is Disputed

Disputes over wills are relatively uncommon, but they do occur — and when they do, they can be deeply distressing, time-consuming, and expensive. Understanding the legal framework, the process, and the realistic prospects of success is essential before embarking on a challenge.

Grounds for Challenging a Will

A will cannot be challenged simply because you feel it was unfair or because you expected to inherit more. There must be a specific legally recognised ground. The principal grounds are:

• Lack of testamentary capacity: At the time of signing the will, the deceased must have understood the nature of making a will, the extent of their estate, who their natural heirs were, and have been free from any disorder of the mind affecting their judgment. If dementia, mental illness, or heavy medication affected their understanding, the will may be invalid. The test comes from the 1870 case of Banks v Goodfellow.
• Undue influence: Someone in a position of trust or power over the deceased pressured or coerced them into making or amending the will against their true wishes. This is notoriously difficult to prove — there must be actual pressure, not simply persuasion or even strong family influence.
• Fraud or forgery: The will or the deceased's signature was forged, or the deceased was deceived into signing a document they did not understand to be a will.
• Failure to comply with execution formalities: Under the Wills Act 1837, a will must be in writing, signed by the testator (or by someone in their presence and by their direction), and witnessed by two independent witnesses who both sign in the testator's presence. If these formalities were not followed, the will is invalid.
• Lack of knowledge and approval: The deceased did not know or approve of the contents of the will at the time of signing, even if they had capacity.

Entering a Caveat: How to Stop Probate Being Granted

The most immediate practical step when challenging a will is to enter a caveat at the Probate Registry. A caveat is a formal notice that prevents a Grant of Probate being issued without the caveator being notified and given the opportunity to object.

How to enter a caveat:

1. Complete the online form at gov.uk (search "enter a caveat for a will") or submit Form PA8A by post to the Principal Probate Registry
2. Pay the fee of £3 per caveat
3. The caveat is valid for 6 months from the date of entry and can be renewed for further 6-month periods for £3 each time

When a caveat is in place, the person applying for probate (the "citor") will be notified. They then have the option to issue a "Warning" to the caveator (the person who entered the caveat). The caveator must then either enter an Appearance (confirming they have a genuine interest in the estate and grounds to challenge) within 14 days, or the caveat lapses and probate can proceed.

If the caveator does enter an Appearance, the matter moves to a "contention" — and neither side can proceed with probate without the other's agreement or a court order. This is where contentious probate proceedings begin.

Larke v Nugus Requests: Investigating the Will's Origins

Before committing to litigation, it is often worth making what is known as a Larke v Nugus request — named after the 1979 case that established this right. A Larke v Nugus request is a written letter sent to the solicitor who drafted the will, asking them to disclose:

• Their attendance notes and file from the meetings at which the will was discussed and signed
• Who gave instructions for the will — whether it was the testator alone, or whether another party was involved
• Whether the solicitor carried out any capacity or undue influence assessment at the time
• Any correspondence with the testator or others about the will's contents

Solicitors are expected to comply with Larke v Nugus requests, though they may take several weeks. The notes can be invaluable: a solicitor who noted concerns about capacity, or who recorded that a third party was present during instructions, can provide strong evidence for or against a challenge.

If no solicitor was involved (the will was homemade), you may instead seek witness statements from those present when the will was signed, or medical records from the deceased's GP and specialist doctors around the time the will was made.

Court Proceedings: What to Expect

Contentious probate claims are issued in the Chancery Division of the High Court (or in the Business and Property Courts in regional centres such as Manchester, Bristol, and Birmingham for cases below certain value thresholds). The claim form is a Part 7 claim under the Civil Procedure Rules.

Realistic timescales and costs:

• Timescale: 1 to 3 years from issue of proceedings to trial, depending on complexity and court availability
• Costs: Specialist contentious probate solicitor fees of £200–£400 per hour; total costs for a contested trial can reach £50,000–£200,000 or more per side in complex cases
• Expert evidence: Medical experts are often required to give opinion evidence on capacity; this adds further cost (£2,000–£10,000 per expert)
• Costs recovery: In contentious probate, the usual civil litigation rule (loser pays) broadly applies, though courts have discretion and sometimes order that costs come from the estate

Mediation: The Practical Alternative to Trial

The courts strongly encourage parties to resolve contentious probate disputes through mediation before trial. In practice, the vast majority of contentious probate cases settle — either through negotiation or at a formal mediation — without ever reaching a final hearing.

Why mediation makes sense in most cases:

• A contested trial is expensive, uncertain, and can take years — by the time costs are paid, the amount left for any party may be substantially less than if they had settled
• Family relationships are often permanently damaged by litigation; mediation can produce solutions that preserve some relationship
• Courts can penalise a party who unreasonably refuses to mediate (following Halsey v Milton Keynes principles) by making adverse costs orders against them even if they win at trial
• Mediation is confidential; settlements can include non-financial elements (such as keeping certain items in the family) that a court cannot order

A professionally conducted mediation typically costs £1,500–£5,000 per day for the mediator (split between parties), plus each party's legal costs for preparation and attendance. This is substantially less than the cost of a trial.

Before committing to any course of action in a contentious probate dispute, specialist legal advice from a solicitor experienced in this area is essential. The law is complex, the stakes are high, and the procedural rules are detailed and unforgiving.