When a loved one passes away, managing their estate can be a complex and emotional process, particularly if disputes arise over the fairness of the distribution or the validity of the will. If you or other family members have concerns about how the estate is being administered, it’s important to understand whether you have legal grounds to contest the probate.
There are several circumstances under UK law in which a probate can be contested. This guide explains the grounds on which a probate can be contested, along with other essential information. For expert guidance in Cardiff and across South Wales, we also highlight the expertise of Martyn Prowel, a leading firm of solicitors in Cardiff with extensive experience in probate matters.
What Are The Grounds for Contesting Probate?
There are a number of legal grounds on which the validity of a will or the distribution of an estate may be challenged. These grounds are important because they protect the rights of beneficiaries, dependants, and other parties who may have been unfairly excluded or inadequately provided for. The most common grounds include the following:
Lack of Testamentary Capacity
The individual who created the will, known as the testator, must have had the mental capacity to understand both the nature of the act and the consequences for their estate and beneficiaries. If they suffered from dementia, mental illness, or any condition that impaired their ability to think rationally, their will may be deemed invalid. To prove that a testator possessed the required mental capacity, they must meet the legal criteria outlined in Banks v Goodfellow (1870):
- The testator must understand the nature of making a will and its effects.
- They must know the extent of their property and what they’re giving away.
- They should understand and appreciate the claims of those who might inherit.
- They must not be suffering from a mental disorder or delusion that affects decisions about distributing their estate.
Improper Execution
A will can be challenged if it does not meet the legal requirements under the Wills Act 1837:
- It must be in writing.
- It must be signed by the testator.
- It must be witnessed by two independent witnesses who are present at the same time.
If these requirements are not met, or if there is evidence that the will was improperly executed, it may be deemed invalid.
Undue Influence or Coercion
A will can be invalid if the testator is being strongly persuaded or otherwise manipulated into changing their mind and leaving everything to the person pressuring them. In other words, the testator’s true wishes and intentions are ignored. This claim is usually tough to prove and requires a thorough review of all the evidence.
Fraud or Tampering
If you think a will has been faked or altered in some way, that can constitute grounds for a claim. The same goes for if the testator was misled about key stuff, either because someone was lying to them or just leaving them in the dark. However, similarly with claims of undue influence or coercion, you need to have solid evidence to back up your claims.
Lack of Knowledge or Approval
Even if the will has been properly signed and meets all legal requirements, it might still be no good if the testator didn’t really know what they were signing up for or what the consequences would be. If they genuinely didn’t approve of what was in the will, then you might be able to challenge its validity.
Claims Under the Inheritance (Provision for Family and Dependants) Act 1975
Even if a will is valid, certain individuals may claim financial provision if they were excluded or inadequately provided for.
Those eligible to claim include:
- Spouses or civil partners
- Former spouses who haven’t remarried
- Children (including adult, step-children, and adopted)
- Cohabitee
- Financial dependants
Individuals who wish to make a claim under the Inheritance Act must do so within six months of the date the grant of probate is issued. Therefore, it is important to seek legal advice as soon as possible.
Executor Misconduct
An executor, also known as a personal representative, is appointed by the testator to administer their estate. However, while the executor is expected to carry out the deceased’s final wishes, they may—whether knowingly or unknowingly—breach the trust placed in them by the testator.
Some main examples of misconduct:
- Misappropriation of estate assets: An executor must not use estate funds or property for their own personal benefit or expenses.
- Improper sale of estate property: An executor must not sell estate assets to beneficiaries below fair market value or for personal benefit.
- Failure to distribute assets: An executor’s failure to distribute estate property or funds to beneficiaries may constitute misconduct. Similarly, unreasonably delaying the administration of the estate can also be considered misconduct.
- Poor recording-keeping: An executor’s failure to maintain accurate, complete, and detailed records of all estate transactions is considered.
Who Can Contest the Probate?
Under UK law, only individuals who have a legal standing are entitled to
- Beneficiaries: Anyone named in the current or a previous will. If there is no will, those who inherit under the laws of intestacy—that is, when someone dies without a will—are also considered beneficiaries.
- Living Relatives and Dependants: A spouse, civil partner, child, or dependant of the deceased may bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
- Executors or administrators: An executor (or personal representative) has a legal duty to ensure the estate is properly administered and may take action if they believe the will is invalid or the estate is being mismanaged.
- Anyone or organization who was promised an inheritance: Individuals or organizations who were promised an inheritance, or who have been disinherited by the deceased, may bring a claim to contest the will.
- Creditors: Individuals or organizations the deceased owed money to may make a claim against the estate.
What Happens If Probate is Successfully Challenged?
If probate is successfully challenged, the will could be declared invalid, in which case an earlier valid will may be enforced. If no previous will exists, the court will distribute the estate according to the rules of intestacy.
Local Legal Services in Cardiff
If you’re based in Cardiff and need legal advice on contesting a will or challenging a probate, local firms like Darwin Gray offer specialist support. Their probate solicitors assist families with all aspects of probate, estate administration, and inheritance tax. They also specialise in contentious probate matters, including disputes over wills, executor duties, and inheritance claims.
Final Tips
Challenging probate can be complex, costly, and time-sensitive—not something to be taken lightly. It requires clear evidence, sound legal reasoning, and often a careful balance between legal rights and family relationships. It’s important to seek advice as soon as possible from an experienced solicitor if you believe something is wrong with a will or the way an estate is being managed.
