Contentious Probate: How to Contest a Will in England and Wales (2026 Guide)

A will is the last thing a person says to those they leave behind. When something about it feels wrong — the signature, the witnesses, the sudden change favouring one child over another — English law gives you a way to ask the court to look again. It is called contentious probate, and it is one of the most delicate areas of civil litigation in England and Wales. Deadlines are short. Costs are heavy. The evidence is almost always circumstantial. But the rules are there, and if you know them, you can use them.

When Can You Contest a Will?

You can contest a will if you have standing (a recognised legal interest) and a ground (a recognised legal reason). Standing means: beneficiary under the disputed will, beneficiary under an earlier will that would revive, entitled under intestacy if no valid will exists, or creditor of the estate.

Ground means one of a closed list: lack of testamentary capacity, want of knowledge and approval, undue influence, fraud or forgery, failure to comply with section 9 Wills Act 1837 formalities, or revocation. Rectification under s.20 Administration of Justice Act 1982 corrects clerical errors without striking the will down.

If you want to stop a grant, enter a caveat before the grant is sealed. Once the grant is out, distribution starts — and recovery becomes harder. Speak to Chris first.

The Grounds in Detail

1. Lack of Testamentary Capacity (Banks v Goodfellow)

The classic test from Banks v Goodfellow (1870) LR 5 QB 549 survives. At the time of making, the testator must understand: the nature of the act, the extent of their property, the moral claims of those they ought to consider, and must not be affected by a disorder of mind that poisons their affections. Clitheroe v Bond [2021] EWHC 1102 (Ch) confirmed Banks v Goodfellow remains the governing test notwithstanding the Mental Capacity Act 2005.

2. Want of Knowledge and Approval

Even a testator with capacity must know and approve the contents. This ground bites where the will was prepared by a beneficiary, or where the testator was frail or dependent. Gill v Woodall [2010] EWCA Civ 1430 sets the two-stage approach: excite the court’s suspicion, then require the propounder to dispel it.

3. Undue Influence (Edwards v Edwards)

Probate undue influence is different from contract — there is no presumption. The challenger must prove actual coercion — that the testator’s will was overborne. Edwards v Edwards [2007] EWHC 1119 (Ch): persuasion and appeals to affection are not undue influence; only pressure overpowering volition without convincing judgment. The bar is deliberately high. Never run this ground alone.

4. Fraud and Forgery

Fraud means the will was procured by a lie. Forgery means the signature is not the testator’s or the document was altered. Forgery usually needs handwriting expert evidence. Fraud requires particularised pleadings under CPR PD 16 para 8.2 — bare allegations can be struck out with costs.

5. Failure of Formalities (s.9 Wills Act 1837)

A will must be in writing, signed by the testator (or by another in their presence at their direction), intending to give effect to it. Signature must be made or acknowledged in the presence of two witnesses present at the same time, who each sign in the testator’s presence. Any link missing, the will is void. Covid video-witnessing expired 31 January 2024.

6. Revocation

By later will (express revocation clause), by marriage or civil partnership (s.18 WA 1837, subject to contemplation exception), or by destruction with intent (s.20).

7. Rectification (s.20 AJA 1982)

Where the will fails to carry out intentions because of a clerical error or misunderstanding of instructions, the court may rectify. Apply within six months of the grant, save with permission. Marley v Rawlings [2014] UKSC 2 extended the jurisdiction significantly.

The Caveat Process (PA8A → PA8B → PA9)

A caveat stops the machine. It is a notice to the Probate Registry that no grant should issue without notice to you.

Step 1 — Enter the Caveat (PA8A)

File Form PA8A with the current fee. Lasts six months, renewable for further six-month periods if renewed within the month before expiry.

Step 2 — The Warning (PA8B)

If the executors want to clear your caveat, they issue a Warning on PA8B. Eight days to act from service.

Step 3 — The Appearance (PA9)

To keep the caveat, enter an Appearance on PA9 within those eight days. The appearance sets out your contrary interest. The caveat becomes permanent — removable only by court order or consent. The matter proceeds to a probate claim.

Do not enter an appearance without a genuine, pleadable ground. Tactical caveats attract wasted costs.

Issuing a Probate Claim

Under CPR Part 57 and PD 57A, issued by Part 7 claim form in the Chancery Division or County Court Chancery list. Accompanied by Particulars of Claim pleading the ground, the facts, and the relief — typically an order pronouncing against the disputed will and in favour of an earlier will or intestacy.

Pre-action protocol — ACTAPS. No formal CPR pre-action protocol exists, but the ACTAPS protocol is treated as the working standard. Early exchange of documents, letter of claim, letter of response, genuine attempt at resolution. Non-compliance attracts CPR 44.2 costs sanctions.

Larke v Nugus: [2000] WTLR 1033 requires a drafting solicitor to give a full account to a person with a legitimate interest in challenging a will. The attendance notes on the drafting file often decide the case.

Evidence the Court Expects

• Medical records — full GP and hospital records around the date of execution.
• The will file — drafting solicitor’s attendance notes, instructions memo, billing, correspondence.
• Witness statements from anyone with contact around execution — family, carers, attesting witnesses.
• Expert evidence — consultant old-age psychiatrist for capacity; handwriting expert for forgery.
• Contemporaneous documents — letters, cards, diaries, bank records showing state of mind.

The Costs Problem

Contentious probate is expensive. A trial with capacity and handwriting experts can cost each party £80,000 to £250,000. The old assumption that costs come out of the estate is largely wrong.

The modern rule from Spiers v English [1907] P 122, affirmed in Kostic v Chaplin [2007] EWHC 2298 (Ch): the loser pays (CPR 44.2). Costs come out of the estate only in two narrow “Morton” exceptions:

1. Where the litigation was caused by the testator or residuary beneficiaries (e.g., poorly drafted will, unexplained change).
2. Where circumstances reasonably called for investigation — losing challenger who acted reasonably may be spared adverse costs.

Outside those windows, the ordinary rule bites. A Part 36 offer made early can be the most important document in the claim.

The 1975 Act Alternative

If the will is valid but has left you without reasonable financial provision, the Inheritance (Provision for Family and Dependants) Act 1975 is a separate route. You accept the will and ask the court to rewrite distribution in your favour. Six months from the grant — save with permission. See our Inheritance Act 1975 Claim guide.

Common Mistakes to Avoid

• Waiting for the grant — enter the caveat early.
• Entering an appearance you cannot sustain.
• Pleading undue influence alone — the bar is too high.
• Unparticularised fraud — breaches CPR PD 16.
• Ignoring ACTAPS.
• Skipping the Larke v Nugus letter.
• Forgetting the 1975 Act six-month clock.
• Refusing mediation (Churchill v Merthyr Tydfil [2023] EWCA Civ 1416).

The Rules That Apply

• Wills Act 1837, ss.9, 18, 20 — formalities and revocation.
• Administration of Justice Act 1982, s.20 — rectification.
• Inheritance (Provision for Family and Dependants) Act 1975.
• CPR Part 57 — probate claims.
• Practice Direction 57A.
• Non-Contentious Probate Rules 1987 — caveat procedure.
• CPR Part 44 — costs and the Morton exceptions.
• ACTAPS Practice Guidance.

How Chris Can Help

Chris drafts. You read, sign, and file. You know your family, your history, the cupboards where the letters are kept. Chris knows the shape of a Part 57 claim and what a Chancery Master expects. Put the two together and the case walks into court with its shoes tied.

When the person behind eLitigant navigated their own family probate, a solicitor quoted £1,200 and took two years without resolution. Sitting down with Chris for an afternoon, the forms were drafted, the estate closed in three weeks. Most solicitors are excellent — but access to justice should not depend on finding the right one. That is why Chris exists.

7-day money-back guarantee. Not happy with the draft before you sign and send? We refund. We are miracle-makers, not miracle-workers — if the underlying merits are weak, no drafting saves a bad case.

Because contentious probate is high-stakes, multi-document, and often multi-forum, Hybrid (£1,000) is usually the right home for it. For a single step — a caveat, a Larke v Nugus letter — Litigator at £30 is enough.

Subscribe for our application: Email hello@elitigant.com with subject line “Application update” and say hello with your given name.

Frequently Asked Questions

How long do I have to contest a will?

No single statutory deadline for validity, but practical limits bite hard. Caveat must be entered before the grant. 1975 Act claim within six months of the grant. Rectification within six months, save with permission. Fraud runs from discovery under the Limitation Act 1980.

Can I contest a will after probate has been granted?

Yes, but harder. Apply to revoke the grant under CPR Part 57 and s.121 Senior Courts Act 1981. Tracing distributed assets becomes a separate equitable exercise.

What does contentious probate cost?

A fully contested trial with experts typically runs each side £80,000 to £250,000. Most cases settle before trial for a fraction.

Who pays the costs?

Loser pays under CPR 44.2. Estate only in the two narrow Morton exceptions.

Do I need a solicitor to contest a will?

No. You can conduct a probate claim as a litigant in person. Chris drafts to the standard the court expects; you represent yourself.

What is a caveat and how long does it last?

A notice on Form PA8A preventing a grant without notice to you. Six months, renewable indefinitely for further six-month periods within the month before expiry.

Difference between contesting and a 1975 Act claim?

Contesting attacks validity. A 1975 Act claim accepts the will but asks the court to order reasonable financial provision.

Will I have to go to mediation?

Almost certainly. Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416. Refusal risks costs sanctions.

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