I Believe My Relative's Will Was Made Under Undue Influence
You suspect that someone pressured or manipulated a vulnerable relative into changing their will in a way that does not reflect their true wishes. You may be able to challenge the will in the Probate Registry and the High Court.
Quick Answer
To successfully challenge a will on the ground of undue influence, you must prove (on the balance of probabilities) that the testator's free will was so overborne by another person's pressure that the will does not represent their true wishes. This is a high legal bar — you must show actual coercion, not merely persuasion. Alternative grounds for challenging a will include lack of testamentary capacity (the testator lacked mental capacity) and lack of knowledge and approval (the testator did not know and approve of the will's contents). Legal advice is essential — contesting a will is expensive and risky.
Full Explanation
Challenging a will in England and Wales requires establishing one of the recognised legal grounds. Undue influence means that the testator's own volition was so overborne by another person that the will reflects the influencer's wishes rather than the testator's own. Banks v Goodfellow (1870) and more recent cases (Scammell v Farmer [2008]; Cowderoy v Cranfield [2011]) establish that the influence must be 'undue' — mere persuasion, moral pressure, or even requests from family members do not suffice. Given that undue influence is difficult to prove (the main witness — the deceased — cannot give evidence), circumstantial evidence is crucial: isolation from other family members, dependence on the influencer, last-minute changes to an existing will, the beneficiary accompanying the testator to the solicitor, and significant changes that seem inconsistent with the testator's expressed wishes.
Lack of testamentary capacity (under the Banks v Goodfellow test) requires that at the time of making the will, the testator: understood the nature of making a will and its effects; understood the extent of the property they were disposing of; comprehended the claims of those who might reasonably expect to benefit; and was not suffering from a disorder of the mind that poisoned their affections, perverted their sense of right, or prevented the exercise of their natural faculties. Evidence from medical records and the attending solicitor is critical.
Lack of knowledge and approval is a distinct ground: the propounder of the will must satisfy the court that the testator knew and approved of the will's contents. Suspicious circumstances (e.g., the will was prepared by a beneficiary, or the testator was illiterate or blind) raise the burden. Fraudulent calumny — making false statements to the testator about other family members to cause them to be excluded from the will — is a specific form of influence.
Practically, contesting a will requires: obtaining a caveat (a formal document lodged at the Probate Registry preventing a grant of probate being made), issuing a claim in the Chancery Division of the High Court, obtaining disclosure of the deceased's medical records and the solicitor's file, and potentially instructing a medical expert. The costs can be substantial and are usually borne from the estate — but if you lose, you may be ordered to pay the other side's costs.
Legal Basis
- §Banks v Goodfellow (1870) LR 5 QB 549 (testamentary capacity)
- §Wills Act 1837
- §Inheritance (Provision for Family and Dependants) Act 1975 (alternative claim for financial provision)
- §Civil Procedure Rules 1998 (contentious probate procedure)
What To Do
Lodge a Caveat at the Probate Registry
A caveat prevents a grant of probate being made without notice to you. It is lodged at the Probate Registry and is valid for 6 months (renewable). This buys time while you gather evidence and take legal advice. Act quickly — once a grant of probate has been issued, challenging it is more complex.
Obtain the Solicitor's File and Medical Records
Request the solicitor's file under the terms of the deceased's estate — as an interested party you may be entitled to see it. Request medical records from the GP and hospital under the Access to Health Records Act 1990 (deceased persons). These will be the primary evidence for capacity and influence.
Instruct a Solicitor Specialising in Contentious Probate
Contentious probate litigation is highly specialist. Instruct a solicitor with experience in this area. They will advise on the strength of your claim, the evidence needed, and the costs risk. Many firms offer initial advice meetings. Legal aid is not available for contentious probate — consider costs and funding from the outset.
Negotiate and Mediate
Many contested will disputes settle by negotiation before trial. The costs of a Chancery trial are enormous — parties may be ordered to bear their own costs from the estate. Mediation before issuing proceedings is strongly encouraged by courts and can save substantial costs.
Issue Proceedings in the Chancery Division
If negotiation fails, proceedings are issued in the Chancery Division of the High Court (or County Court for lower-value estates). The claim will allege undue influence, lack of capacity, and/or lack of knowledge and approval. Full disclosure, witness evidence, and often expert medical evidence will be required before trial.
Important Deadlines
Important Warnings
The legal bar for undue influence is high — mere persuasion or appeals to affection are not enough. You must show the testator's free will was actually overborne.
Contesting a will without evidence is risky — you may be ordered to pay the other side's costs. Obtain legal advice before lodging a caveat or issuing proceedings.
If the estate is modest, the costs of litigation may exceed any benefit. Consider whether the Inheritance (Provision for Family and Dependants) Act 1975 offers a more cost-effective route if you were financially dependent on the deceased.