Probate Disputes part 1

This is the first article in our three-part series addressing the common probate disputes that may arise in respect of a deceased estate. In this article series, the Ramsden Lawyers’ Litigation Team, shares their insights on the types of disputes which frequently arise in relation to a contested deceased estate, including challenging or contesting a will.

Part two of the series will focus on family provision applications, including who is eligible to make a family provision application and the steps required to obtain adequate provision from a deceased estate.

The final part of the series will focus on the obligations of an executor or administrator of a deceased estate, and what a beneficiary or other affected person may be able to do if there is a suspected breach of duty by the executor.

In this part, the Litigation Team outlines the types of disputes which may arise when the legal validity of a will is challenged in probate proceedings.

In order to administer a deceased estate (i.e. distribute the estate to the rightful beneficiaries after the assets are collected and debts discharged) it is sometimes necessary to apply to the court for a grant of ‘probate’ of the will (or letters of administration if the deceased died without a will). ‘Probate’ is recognition by the court that a will is legally valid and authorises the executor named in the will (or administrator if the deceased did not leave a will) to deal with the deceased estate.

There is a presumption that when a will is executed with due diligence, it is valid and enforceable. However, it can be common for there to be a dispute as to the validity of the will for any number of reasons. Where the validity of a will is disputed, the court can grant ‘probate’ which is an order that validates a will. This subsequently allows for the estate to be distributed in accordance with the contents of the will.

There are a number of grounds on which the validity of the will may be in dispute, including:
1. That the deceased did not have the requisite mental capacity to make the will;
2. That the will was made in circumstances of undue influence or duress; and
3. That the will has been revoked by the deceased.

Mental Capacity

Where the person who makes the will, referred to as the ‘testator’, lacks the requisite mental capacity to make such decisions, the will is invalid and probate will not be granted by the court.

The testator must have the requisite mental capacity to make a will at the time of making the will. A testator will have requisite mental capacity where:

1. The testator understood that they were making a will and the effects of making a will, notwithstanding the legal terminology involved;
2. The testator understood of the nature, extent and general value of their estate (e.g. the deceased knew they owned a property, had some cash in a bank account and held some shares); and
3. The testator’s awareness that people will make a claim on their estate and their ability to evaluate the claims of such persons. For example, a testator may wish to specifically exclude an estranged child from receiving any provision from their estate.

If these three elements are not met, the will is invalid and will have no effect. This can be critical in some estates disputes, because it may render an earlier will as the valid final will of the deceased, or it may result in the deceased dying ‘intestate’ (i.e. without any will), in which case, their estate is distributed in accordance with the rules of intestacy (which set out the standard rules as to who will inherit the deceased’s estate).

It is important to note that even where a person has been diagnosed with an illness that may affect their mental state, this does not automatically negate their ability to meet the threshold capacity to make a will. Some factors which indicate a lack of mental capacity include lapse in memory, delusions or an inability to do day-to-day tasks. Ultimately, a will can be validated by the court where all the elements of mental capacity described above can be satisfied.

Undue Influence and Duress During the Creation of a Will

Occasionally, probate can also be refused on the grounds of undue influence or duress. This affects the testator’s ability to express their independent and voluntary choice in relation to the distribution of their estate.

Undue influence will usually arise where an intended beneficiary has exerted unlawful pressure on the testator to submit to the wishes of the beneficiary in the creation of the will. This results in the will not reflecting the true intentions of the testator. The influence often comes from close relatives or trusted friends or advisors where there is a relationship of trust and dependence. In some cases, there is clear bullying or coercion involved which can establish a claim of duress. However, this is only recognised by the court in exceptional circumstances where evidence establishing the presence of coercive tactics is available.

Duress can arise in similar circumstances to undue influence, as it involves external pressures in the making of the will. Some instances in which a will may have been executed under duress are where the deceased has been subject to harassment or threats of violence, damage to property or the withdrawal or support or care to coerce the testator to make their will on certain terms.

There are certain circumstances which indicate a will has been created or modified under the influence of another individual. Where there are unexplained changes such as modifying the distribution of the estate without any explanation, this may indicate a third-party motive could be involved. There have been cases where in the final months of a testator’s life, their will has suddenly been changed to leave their entire estate solely to their carer or a single child of the testator. In this instance, the will may not be validated on the ground that there has been undue influence prior to the testator’s death. Furthermore, where a will is made with the assistance of a family member, this may lead to a claim of undue influence and the court denying probate.


Where there is uncertainty surrounding an individual’s mental capacity at the time of making a will, we strongly recommend obtaining legal and medical advice. Otherwise, there may be a risk that a will executed in those circumstances may be invalid or liable to be challenged.

In order to avoid concerns being raised from the estate’s beneficiaries, it is important that the will is made without the guidance of a third-party to avoid allegations of undue influence. Thus, the role of a lawyer is not only important when it comes to the drafting of the will itself, but they also have an vital role in ensuring that the will reflects solely the interests of the testator.

Our role

Ramsden Lawyers are able to assist you with any probate disputes whether you are the named executor in a will, a beneficiary under a will or in some circumstances a relative of the deceased.
Please do not hesitate to get in contact with us to arrange an initial consultation in relation to your probate or will dispute. There may be strict timeframes that could apply to any action that may be brought, so you will often need to act quickly to protect your interests.

The content of this article is intended to provide a general guide to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your particular circumstances.