Probate Disputes Which Start Before Probate

Written by Tanya Waterworth, Digital Content Writer

About Our Legal Expert: This content is produced with oversight by Michael Jefferies, Managing Director who has over 30 years’ legal experience.

Why They’re Rising and How Families Can Navigate Them

Conflicts over a will are increasing and may now even erupt into probate disputes which start before probate. This shift may be because of rising property prices, longer life expectancy as well as modern blended families with different expectations. Basically, people look for reassurance that their loved one is protected and that their future inheritance is secure. As a result, tensions may reach the surface while the testator is still alive and along with it, pre-death probate disputes. These often deal with common factors also seen in contentious probate claims following the death of a loved one.

Our blog looks at common pre-death disputes and how families may constructively manage such conflicts.

The Rise in Pre‑Death Probate Disputes

The increase in disputes before probate reveals several societal trends which may include:

• Longer life expectancy means more years of potential vulnerability.
• Rising property values make estates more contentious.
• Blended families create competing expectations.
• Greater awareness of legal rights encourages earlier intervention.

These disputes are not technically “probate disputes” yet as probate only begins after death. But they can be an indicator of the early battles which could turn into a contentious probate claim.

The Key Types of Disputes That Arise Before Probate

Below are the most common categories of conflict that surface while the testator is still alive. Formal requirements are covered by the Wills Act 1837. Each of the below may have a direct impact on the estate that will eventually be administered.

1. Capacity Challenges

Families increasingly question whether a testator has the mental capacity to make or change a will. These disputes can often arise when:

• A new will appears late in life.
• A long‑standing beneficiary is suddenly removed.
• A vulnerable testator begins showing signs of cognitive decline.

We have noticed that capacity disputes can often start informally, for example statements such as  “Mum doesn’t seem herself” may be made long before anyone seeks a formal assessment. These early conversations can later shape a capacity challenge.

2. Undue Influence Concerns

This is one of the most emotionally charged pre‑death disputes. It can start pre-death because family members may suspect that:

• A new partner is exerting pressure.
• A carer is isolating the testator.
• A sibling is controlling access to the testator.

These concerns often lead to early legal advice, safeguarding referrals, or attempts to intervene in the testator’s decision‑making.

Undue influence is not a sudden occurrence. It is usually subtle and on-going for a period of time making early detection difficult. Family conflict can erupt over this issue.

3. Disputes Over Lifetime Gifts

Families may challenge gifts made while the testator is alive, especially if:

• A large sum of money is transferred to one child.
• A property is transferred for “care” or “companionship”.
• A vulnerable testator appears to be giving assets away without understanding the consequences.

These disputes can often foreshadow later claims of undue influence or fraudulent calumny.

4. Concerns About Attorneys or Deputies

Where a Lasting Power of Attorney (LPA) or deputyship is in place, disputes often arise over:

• Misuse of funds
• Poor record‑keeping
• Decisions that appear to benefit the attorney
• Restricting family access to the testator

A deputyship is a court ordered role where a deputy is authorised to make decisions for someone who lacks capacity.

Challenges to attorneys often reveal deeper family fractures, such as siblings who never agreed on care arrangements, finances, or who should “take charge”.

5. Arguments Over Will‑Making Access

Some families become concerned and intervene because they believe:

• The testator is being prevented from making a will.
• The testator is being rushed into making one.
• A solicitor is not receiving full or accurate information.

These disputes typically involve solicitors, carers, and relatives all trying to control who gets access to the testator and when.

 How to Overcome Pre‑Death Probate Disputes

Resolving these disputes early can prevent contentious probate claims later which are stressful for everyone involved. The following strategies are effective:

1. Encourage Independent Legal Advice

A testator who receives independent advice from a solicitor experienced in capacity and undue influence issues can:

• Reduce suspicion
• Create a clear paper trail
• Protect their autonomy
• Strengthen the validity of their will

Solicitors can also conduct “Golden Rule” assessments (where appropriate) which ensures a medical professional is present at the time of will-making.

2. Seek a Capacity Assessment

A medical assessment can:

• Provide clarity
• Reduce future disputes
• Support the testator’s wishes

However, it’s not a cure‑all as the testator’s mental health may change over time. But it can form powerful evidence if a dispute later arises.

3. Mediation Before Death

Pre‑death mediation is becoming more common as it allows families to:

• Air concerns safely
• Agree boundaries
• Clarify intentions
• Avoid escalation

It can also protect the testator from stress and conflict.

4. Document Everything

Clear records help protect both the testator and the estate. Useful documentation includes:

• Notes of meetings
• Reasons for decisions
• Medical evidence
• Solicitor correspondence

These factors will strengthens the estate’s position later.

Top 3 FAQs About Pre‑Death Probate Disputes

1. Can you challenge a will before someone dies?

No. You cannot formally ‘contest a will’ until the testator has died. However, you can take preventative legal steps while the testator is alive, such as raising your concerns with the solicitor making the will or seeking a medical capacity assessment.

2. Is it possible to stop someone influencing a vulnerable testator?

You can raise safeguarding concerns, seek legal advice, or request professional oversight. Early action may be important to protect a vulnerable testator.

3. Does early intervention reduce later probate disputes?

Yes. Clear evidence gathered before death often prevents or resolves disputes after death.

Contact Us

Pre‑death probate disputes are no longer unusual. Families intervene earlier because they want clarity, protection, and fairness. But early intervention must be handled carefully. However, if your loved one has died and you have concerns regarding the will, we can help.

We work with experienced contentious probate solicitors who can assess your position with a free, no-obligation consultation – call us at 0333 358 2345 or contact us online.