Contesting a Will: The Five Grounds and the Court Process

Under Banks v Goodfellow (1870) LR 5 QB 549, the testator must:

1. Understand the nature of the act of making a will and its effects.
2. Understand the extent of the property of which they are disposing.
3. Be able to comprehend the persons who have moral claims upon them.
4. Have no disorder of the mind that perverts their sense of right or prevents the exercise of natural faculties.

Common challenges involve dementia, mental illness, or the effect of medication. Evidence required:

• Medical records contemporaneous with the will.
• GP and specialist records.
• Expert opinion from a consultant (psychiatrist or geriatrician).
• Evidence from the solicitor who drafted the will (often the "Golden Rule" — Kenward v Adams [1975] — requires a solicitor to ensure a medical assessment of capacity for elderly or ill testators).
• Evidence from family, carers, neighbours about the testator's state at the relevant time.

The burden of proof: initial presumption is that a regular will was made by someone with capacity. Once challenged with credible evidence of doubt, the burden shifts to those propounding the will to prove capacity.

Knowledge and approval (K&A) requires that the testator knew and approved of the contents of the will. Capacity to make a will is necessary but not sufficient — the testator must specifically have understood what this particular will provided.

K&A challenges arise particularly where there are "suspicious circumstances":

• The will significantly benefits the person who drafted it or arranged for its drafting.
• The testator was elderly, ill, or in dependence on the beneficiary at the time.
• The will represents a sudden change of dispositions.
• The will was drafted without independent legal advice or by a solicitor recommended by the beneficiary.
• Procedure was hurried, with the testator under pressure.

Where suspicious circumstances exist, the burden falls on those propounding the will to "remove the suspicion" — to show affirmatively that the testator knew and approved. Gill v Woodall [2010] emphasised that the standard required is the balance of probabilities; the court does not require dramatic evidence of pressure.

Undue influence in testamentary cases is much harder to prove than in lifetime gifts. The court requires "coercion" — pressure of such a nature as to overpower the volition without convincing the judgment. As Hannen P said in Wingrove v Wingrove (1885): "to make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, — these are all legitimate, and may be fairly pressed on a testator."

The challenger must prove on the balance of probabilities that the testator was actually coerced. Mere opportunity to influence is not enough; mere persuasion is not enough. The evidence must show that the testator's judgment was overborne.

Most testamentary undue influence challenges fail. Many cases of suspect testaments succeed instead under want of knowledge and approval (which has a lower bar). Lawyers often plead both as alternatives.

The will is fraudulent if:

• The signature was forged.
• The testator was deceived about what they were signing (e.g. told it was a power of attorney).
• The will was obtained by misrepresentation — e.g. by lies about other family members.

Forgery cases are evidentiary contests — handwriting experts are usually instructed. The bar for proving forgery is the civil standard (balance of probabilities) but the gravity of the allegation means courts require cogent evidence.

Fraud cases (the testator was deceived about the contents) overlap with want of knowledge and approval. Fraud requires showing dishonest deception; K&A requires only that the testator did not know what they were signing — easier to prove.

Section 9 of the Wills Act 1837 requires:

• The will must be in writing.
• It must be signed by the testator (or by another person in their presence and by their direction).
• The testator's signature must be made or acknowledged in the presence of two or more witnesses present at the same time.
• Each witness must sign or acknowledge their signature in the presence of the testator (but not necessarily in the presence of each other).

Failure of any element invalidates the will. Common defects:

• Only one witness, or two witnesses not simultaneously present.
• A witness who is also a beneficiary (under s.15 Wills Act 1837, the witness loses their entitlement — the will may still be valid otherwise).
• Unwitnessed alterations after signing.
• Witnesses signing after the testator left.

The procedural challenges require evidence from the solicitor (or other person) who supervised the signing, and from the witnesses themselves. Wills made without solicitor supervision (homemade wills, DIY kits) are particularly vulnerable to formality challenges.

Steps:

1. Caveat — enter a caveat at the Probate Registry preventing grant of probate. Valid for 6 months, renewable. Cost: £8.
2. Warning — if executors apply for probate, they issue a warning to remove the caveat. The contester must "enter appearance" within 14 days or the caveat falls.
3. Particulars of claim — for a contested probate action, the contester drafts particulars (in High Court Chancery Division for substantial estates) setting out the grounds.
4. Defence and counterclaim.
5. Disclosure, witness statements, expert reports.
6. Trial — usually 2-5 days in the High Court. Many cases settle before trial through mediation.

Costs: contested probate is expensive — £30,000-£150,000+ per side typical for moderate estates. Costs are often paid from the estate where the will's validity is genuinely in issue. Loser-pays rules apply where the challenge is misconceived.