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There are five legal grounds for contesting a will: lack of testamentary capacity (the Banks v Goodfellow test), lack of valid execution, undue influence, fraud or forgery, and lack of knowledge and approval. Disagreement with the distribution is not a legal ground.
English law presumes that a validly executed will reflects the true wishes of a person who had testamentary capacity. To challenge a will, you must establish one of five specific legal grounds. This guide explains each ground, what must be proved, the evidence needed, and the practical difficulties involved.
For an overview of the whole contentious probate process, see our guide on what is contentious probate.
The most commonly pleaded ground. The test for testamentary capacity derives from the Victorian case Banks v Goodfellow (1870): to have capacity, a testator must:
Key points: dementia, Alzheimer's disease, or other cognitive impairments may affect capacity, but having these conditions does not automatically mean capacity was lacking — capacity must be assessed at the time the will was made. A person can have fluctuating capacity (lucid intervals).
Evidence needed: medical records, GP notes, care home records, psychiatric assessments, expert medical opinion (a retrospective capacity assessment by a consultant psychiatrist costs £3,000–£8,000).
For a full guide, see our guide on lack of testamentary capacity.
Section 9 of the Wills Act 1837 requires that for a will to be valid:
Common execution failures: only one witness present, witnesses signed on a different occasion, the testator did not actually sign but only initialled, a beneficiary or their spouse witnessed the will (which does not invalidate the will but causes the gift to that beneficiary to lapse).
If the will was prepared by a solicitor, a failure of execution is less likely but does occur. The Golden Rule — that solicitors preparing wills for elderly or ill testators should obtain a medical assessment of capacity — is relevant but not a strict legal requirement.
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Undue influence in will-making means that the deceased was coerced into making the will in a particular way — the influence must have been so strong that it overrode the testator's own free will, such that the resulting will was not truly their own act.
Important points:
For a full guide, see our guide on undue influence in will-making.
A will can be challenged if it is:
Forgery claims require forensic handwriting evidence, which can be expensive (£3,000–£8,000 for a report from a Questioned Documents Examiner). Fraud claims require clear evidence of the deception.
For a full guide, see our guide on fraud and forgery in wills.
Even if the testator had capacity and the will was properly executed, the will can be challenged if it can be shown that the testator did not know and approve the contents of the will at the time they signed it.
This ground is most relevant where:
If knowledge and approval are challenged, the burden shifts to the person propounding the will to prove it was known and approved.
To avoid wasted time and costs, it is important to understand that the following are NOT valid grounds for challenging will validity:
If you feel the provision for you was inadequate (but the will is otherwise valid), you may have an Inheritance Act 1975 claim. See our guide on Inheritance Act 1975 claims.
For the immediate step of protecting your position, see our guide on how to enter a caveat. For time limits, see our guide on time limits for contesting a will. For costs, see our guide on costs in contentious probate. For the overall estate administration, see our estate administration checklist.
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