Do Will Disputes Have to Go to Court?

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.

Grounds for Contentious Probate Claims

Will disputes are becoming increasingly common as family structures grow more complex and estates rise in value, but a common question is do will disputes have to go to court?  When disagreements arise after someone dies, many people fear that the only way to resolve the matter is through costly and stressful court proceedings.

The short answer is no – most will disputes do not end up in court. While some cases ultimately require a judge’s decision, many contentious probate  claims are resolved long before reaching a courtroom.

However, contentious probate is a complex area of law and it’s advisable to speak to a specialist contentious solicitor who can guide you through a mediation process to find a resolution to a contested will.

We partner with a panel of experienced contentious probate solicitors who offer a range of fee structures, including ‘No Win, No Fee’ agreements along with other flexible funding.

Get in touch with our team today for a free, no-obligation consultation.

Do Will Disputes Have to Go to Court?

In England and Wales, will disputes do not automatically go to court. Court is typically the last resort, used only when the parties cannot reach an agreement through negotiation, mediation or alternative dispute resolution (ADR).

Here’s what usually happens:

• A complaint or challenge is raised.
• Evidence is gathered.
• Solicitors for each party negotiate.
• Mediation or settlement discussions take place.

Only if all these avenues fail will a case be listed for trial.

Why most cases settle out of court:

• Court proceedings are expensive and time-consuming.
• Uncertainty about how a judge will rule encourages parties to compromise.
• Many families prefer a private resolution rather than a public trial.
• Mediation success rates in will disputes are very high.

However, when the parties are fixed in their positions and will not budge or the evidence is complex, a contentious probate claim may go to court for a final ruling.

Grounds for Bringing a Contentious Probate Claim

To dispute a will, you must have legally recognised grounds. Here are the main reasons a will can be challenged.

Lack of Testamentary Capacity

For a will to be valid, the person making it (the testator) must have been of sound mind. They need to understand:

• The nature and effect of making a will
• The extent of their estate
• Who they should consider as potential beneficiaries

A challenge based on lack of capacity often arises when the testator had dementia, Alzheimer’s, a mental health condition or was taking medication that may have impaired their decision-making.

Evidence may include medical records, witness statements and solicitor notes from when the will was prepared.

Lack of Knowledge and Approval

Even if the testator had capacity, the will may still be invalid if they did not fully understand or approve its contents. This may happen when:

• The will was prepared in unusual circumstances
• The provisions of the will are unexpected or significantly different from previous versions
• The testator relied heavily on someone who may have influenced them

A suspicious circumstance might involve a major beneficiary helping to prepare the will or arranging the appointment.

Undue Influence

A will can be challenged if someone exerted coercion or pressure on the testator.

However, undue influence is one of the most difficult grounds to prove. The court will look for evidence of:

• Threats or intimidation
• Manipulation
• Isolation from friends or family
• Control over finances or care

In short, the influence must go beyond persuasion and must effectively override the testator’s free will.

Fraud or Forgery

If a will is forged or signatures are falsified, it is invalid. Fraud may also involve misleading the testator by providing false information, causing them to write their will differently.

Handwriting experts, document specialists and witnesses may be required to establish authenticity.

Improper Execution

The Wills Act 1837 sets out strict requirements for a valid will. It must be:

• In writing
• Signed by the testator or an authorised person
• Witnessed by two independent adults who are present at the same time

If any part of the process was carried out incorrectly, the will may be challenged.

Claims Under the Inheritance (Provision for Family and Dependants) Act 1975

Even if a will is valid, certain individuals can make a claim if they believe the will does not make reasonable financial provision for them. Eligible claimants who may fall under the Inheritance Act 1975 include:

• Spouses and civil partners
• Former spouses who have not remarried
• Children (including adult children)
• Cohabitees who lived with the deceased for at least two years
• Dependants financially supported by the deceased

These claims are not about challenging the validity of the will but seeking a fair share of the estate.

How to Challenge a Will: What to Do Next

If you believe you have grounds to dispute a will, it is vital to act quickly and follow the correct procedures. Here are your next 5 key steps:

1. Seek Early Legal Advice

Contentious probate is a highly specialised area of law. A solicitor will:

• Assess whether you have a valid claim
• Help preserve assets in the estate
• Advise on time limits (Inheritance Act claims, for example, have a strict six-month deadline from the date probate is granted)
• Guide you through mediation and negotiation

Getting advice early also helps avoid unnecessary conflict or costs.

2. Enter a Caveat (If Appropriate)

A caveat stops the issue of a grant of probate for six months. This is useful if:

• You suspect the will is invalid
• You need time to gather evidence
• You want to prevent the estate from being distributed

3. Collect Evidence

Successful will challenges rely heavily on evidence. This may include:

• Medical records
• Previous wills
• Witness statements
• Solicitor correspondence
• Financial documents
• Expert reports

The aim is to build a clear picture of the circumstances surrounding when the will was made.

4. Explore Mediation and Settlement Options

The courts in England and Wales strongly encourage parties to settle without litigation. Mediation allows everyone to:

• Discuss issues privately
• Understand each other’s positions
• Reach a compromise with the help of an impartial mediator

Most disputes settle at this stage, saving considerable time, costs and emotional stress.

5. Issuing Court Proceedings as a Last Resort

If all negotiation attempts fail, court proceedings may be necessary. Your solicitor will file a claim.

A judge will then make a final decision on the validity of the will or entitlement under the Inheritance Act.

Although this route is sometimes unavoidable, it is typically long and expensive. This is why early negotiation and mediation are strongly recommended.

Don’t Hesitate: Act Now

By acting quickly and getting expert legal advice, you can significantly increase your chances of a successful and cost-effective outcome when challenging a will. Most will disputes do not go to court, but go the route of medication and negotiation.

Our partner panel of specialist solicitors are here to help you during this difficult time, so speak to our team today and arrange your free consultation.

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