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Challenging a will – probate claims

July 31, 2013

In simple terms challenging the validity of a will or a claim relating to a grant of probate is a ‘probate claim’. Special procedural rules apply. The function of the Court is to determine what papers constitute the last will of a testator and who his personal representatives are.

Disputes over the soundness of a testator’s mind are becoming more common. They often involve issues of dementia but can involve traumatic injury, depression, alcohol, drug abuse and delirium (confused state). A testator should be able to understand the nature of making a will and its effects, the extent of his property and he should comprehend and appreciate the claims to which he should give effect. This comprehension and appreciation should not be distorted by any ‘disorder of the mind’ (a term used in a famous case 140 years ago). He doesn’t need to know every detailed item that he owns (no ‘mental inventory’ needed). He must be able to recall those who ‘have claims on his bounty’ so that he can decide what to leave to whom even if he chooses not to leave anything to them.

A case involving the soundness of mind might involve consideration of medical notes, nursing home notes, witness evidence, contemporary documents, and a statement from the solicitor taking instructions and from the witnesses to the execution of the will. A report of a medically qualified expert will also be required although of itself it is unlikely to be conclusive. The court will look at all the evidence to arrive at a conclusion. The existence of a condition such as dementia does not inevitably result in a finding that the testator was not of sound mind in this context.

The testator might deteriorate between giving instructions and executing the will (particularly where the acts are some time apart). He does not need to have capacity to understand the instructions when executing but only that the document he is executing was prepared on his instructions. The test is therefore different to that applying at the time instructions were taken.

Most cases settle without the need for a trial. It is often the case that the legal costs can consume a sum equal to or greater than the value of the estate involved. Those bringing and defending claims should keep proportionality in mind. They should also keep in mind that the question of who should pay the legal costs is at the discretion of the trial Judge. It is a misconceived assumption that the estate will always bear the cost of the litigation, win or lose.

Questions of undue influence and fraud are more often alleged by potential claimants than proven. The evidence required to maintain such an allegation is not easily addressed and such claims involve particular risks.

Where the will is valid formally and substantively a claim might still be brought by certain classes of people for reasonable provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. This is not a probate claim and is a subject for another short note.

These matters are complex and you should instruct an experienced solicitor familiar with such cases such as Keith Hardington here at Walker Foster. If you would like to discuss this subject please make contact on 01756 700200 or

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