Challenging a Will's Validity: Evidence You Need for Court

By Stevie Hayes · Last updated: March 2026

Believe a will is invalid? Challenging the validity of a will is one of the most evidence-intensive areas of civil litigation. You need the right documents, in the right order, presented to the right standard. BundleCreator.co helps you build a court bundle aligned with CPR Part 57 and the Chancery Guide for will validity challenges, with pre-loaded templates and automatic pagination — so your evidence speaks for itself.

Quick Answer

To challenge a will's validity in England and Wales, you must establish one or more recognised grounds: lack of testamentary capacity, want of due execution, undue influence, fraud or forgery, or want of knowledge and approval. Each ground requires specific evidence. Medical records, the solicitor's attendance notes, witness testimony, and the Larke v Nugus statement are typically central to the bundle. Proceedings are usually brought in the Chancery Division of the High Court or transferred there from the county court, and the burden of proof varies depending on the ground relied upon.

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The Grounds for Challenging a Will

English law recognises several distinct grounds on which a will may be challenged. Each has its own legal test, its own evidential requirements, and its own tactical considerations. Understanding which ground — or combination of grounds — applies to your case is the first step.

1. Lack of Testamentary Capacity

The test for testamentary capacity was established in Banks v Goodfellow (1870) LR 5 QB 549 and has been refined but never replaced. At the time of executing the will, the testator must have understood:

1. The nature of the act — that they were making a will and its effect
2. The extent of the property — a broad understanding of what they owned
3. The claims of those who might expect to benefit — the moral claims of family members and others
4. No disorder of the mind — that they were not suffering from a mental disorder that poisoned their affections, perverted their sense of right, or prevented the exercise of their natural faculties

The threshold is not high. A person may have significantly diminished cognitive function and still retain testamentary capacity, provided the four limbs are satisfied. Equally, a diagnosis of dementia does not automatically render a will invalid — the question is always whether capacity was present at the specific moment of execution.

What Evidence Do You Need?

The retrospective expert report is often the single most influential piece of evidence. A consultant psychiatrist or old-age psychiatrist will review all available medical records, the solicitor's file, and any lay witness accounts, and express an opinion on whether the Banks v Goodfellow test was satisfied at the relevant date.

2. Want of Due Execution

Section 9 of the Wills Act 1837 requires that a valid will must be:

• In writing
• Signed by the testator (or by another at the testator's direction and in their presence)
• Made with the intention that the signature gives effect to the will
• Made or acknowledged in the presence of two witnesses present at the same time
• Attested and signed by both witnesses in the testator's presence

A will that fails any of these requirements is void. In practice, execution challenges most commonly arise where:

• The witnesses were not both present at the same time when the testator signed
• The testator's signature was guided or made by another person without proper authority
• The witnesses signed on a different occasion from the testator
• The will was signed during the COVID-19 period under the modified rules (which permitted video-witnessed wills temporarily)

What Evidence Do You Need?

• The original will — for forensic examination of signatures, ink, paper
• Witness statements from the attesting witnesses — their account of the execution ceremony
• Handwriting or forensic document expert report — if the signature is disputed
• Solicitor's attendance note — detailing the execution process
• Evidence of the testator's physical condition — if the signature was guided or made by mark

3. Undue Influence

Undue influence in the context of wills is notoriously difficult to prove. Unlike in contract or gift cases, there is no presumption of undue influence in testamentary dispositions. The challenger must prove, on the balance of probabilities, that the testator's will was actually overborne — that coercion, rather than persuasion, was applied.

The leading modern authority is Schrader v Schrader [2013] EWHC 466 (Ch), where the court considered:

• The vulnerability of the testator (age, health, dependence on others)
• The opportunity for influence (who had access, who controlled information)
• The conduct of the alleged influencer (isolation of the testator, involvement in will instructions)
• The unexplained departure from previous testamentary intentions
• The circumstances surrounding the preparation and execution of the will

What Evidence Do You Need?

• Previous wills — to demonstrate a change in testamentary intentions
• Correspondence — letters, emails, and text messages between the testator and the alleged influencer
• Evidence of isolation — witnesses who can testify that the testator was cut off from family or friends
• Financial records — showing the alleged influencer's control over the testator's finances
• Care records — if the testator was in a care home, records of visitors and the testator's stated wishes
• Witness statements — from those who observed the relationship between the testator and the alleged influencer

Because the burden of proof lies squarely on the challenger, and because allegations of undue influence are by their nature allegations of serious misconduct, the evidence must be compelling. Mere suspicion or opportunity is not sufficient.

4. Fraud or Forgery

Fraud encompasses situations where the testator was deceived into making testamentary provisions — for example, by being told falsehoods about a beneficiary's character or circumstances. Forgery involves the will itself being fabricated or the testator's signature being forged.

What Evidence Do You Need?

• Forensic document examination — handwriting analysis, ink dating, paper analysis
• Comparison signatures — authenticated specimens of the testator's genuine signature from the same period
• Expert report — from a forensic document examiner (ideally accredited by the Chartered Society of Forensic Sciences)
• Evidence of the circumstances — who had access to the will, who arranged its preparation
• Original documents — courts strongly prefer originals to copies for forensic examination

5. Want of Knowledge and Approval

Even where a testator has capacity and the will is properly executed, the court must be satisfied that the testator knew and approved of the contents of the will. This ground is particularly relevant where:

• The will was prepared by a beneficiary (raising a presumption that must be rebutted)
• The testator was blind, illiterate, or did not speak the language in which the will was written
• The will contains surprising or unusual provisions

The burden of proving knowledge and approval rests on the person propounding the will (usually the executor), but in practice the challenger must raise sufficient evidence to put it in issue.

What Evidence Do You Need?

• The solicitor's attendance note — was the will read over to the testator? Did the testator give their own instructions?
• Evidence of the beneficiary's involvement — did they drive the testator to the solicitor, attend the meeting, or correspond with the solicitor?
• Evidence of the testator's understanding — their literacy, language ability, and cognitive function
• Previous wills and testamentary documents — to show the contested provisions are a departure from the testator's known wishes

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The Larke v Nugus Request

One of the most important evidence-gathering tools in any will validity challenge is the Larke v Nugus request. Following the guidance in Larke v Nugus [2000] 1 WLR 299 (as approved by the Court of Appeal), the solicitor who prepared the disputed will is expected to provide a detailed statement covering:

• The circumstances in which instructions for the will were received
• Who was present when instructions were given
• What the testator's instructions were
• Whether the testator appeared to understand the instructions
• The solicitor's assessment of the testator's mental state
• How the will was executed and who was present
• Any concerns the solicitor had about capacity or undue influence
• Whether a capacity assessment was obtained

This statement should be requested as early as possible — ideally before proceedings are issued. The solicitor is expected to respond within a reasonable time, and an unreasonable failure to do so may be raised with the court.

Bundle tip: The Larke v Nugus statement is typically one of the most important documents in a will validity bundle. Place it prominently — usually in the section dealing with the preparation and execution of the will — and ensure it is cross-referenced in your witness evidence. BundleCreator.co allows you to organise documents into logical sections with customised headings, making it straightforward to build a bundle structure that highlights this critical evidence.

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Structuring Your Bundle for a Will Validity Challenge

A well-organised bundle for a will validity challenge typically follows this structure:

Section A: Statements of Case and Court Documents

• Claim form
• Particulars of claim (setting out the grounds of challenge)
• Defence
• Reply (if any)
• Case management orders and directions

Section B: Testamentary Documents

• The disputed will
• All previous wills and codicils
• Any letter of wishes
• The Larke v Nugus statement
• Solicitor's attendance notes and file notes

Section C: Medical Evidence

• GP records (relevant extracts)
• Hospital records (relevant extracts)
• Mental capacity assessments
• Retrospective expert report
• Care home records

Section D: Witness Statements

• Claimant's witness statement
• Statements from family members, friends, and carers
• Statements from the attesting witnesses (if execution is challenged)
• Any reply witness statements

Section E: Expert Evidence

• Forensic document examiner's report (if forgery is alleged)
• Psychiatric or geriatric expert report (if capacity is challenged)
• Any Part 35 questions and answers

Section F: Correspondence and Miscellaneous

• Pre-action correspondence
• Solicitors' letters
• Relevant emails, text messages, and other communications
• Financial records (if relevant to the relationship or dependency)

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The Burden and Standard of Proof

Understanding who bears the burden of proof is essential to preparing your evidence — and therefore your bundle.

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Practical Tips for Gathering Evidence

1. Act quickly. Witnesses' memories fade, care homes close, and medical records are not retained indefinitely. Start gathering evidence as soon as you suspect the will may be invalid.

2. Request medical records promptly. Subject access requests under UK GDPR can take up to one month. Records from GP surgeries, hospitals, and care homes may be held by different organisations and require separate requests.

3. Preserve the original will. If the original will is in your possession or accessible to you, ensure it is preserved in its current condition. Do not fold, staple, or mark it. If forgery is suspected, the original may need forensic examination.

4. Instruct a single joint expert where possible. The court encourages parties to agree on a single expert, particularly for medical evidence. This saves costs and avoids the adversarial "battle of experts" that can obscure rather than illuminate the issues.

5. Use BundleCreator.co for organisation. When you are dealing with hundreds of pages of medical records, solicitors' files, and witness statements, a professionally paginated and indexed bundle makes the difference between a judge who can follow your case and one who cannot.

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How BundleCreator.co Can Help

Will validity challenges produce some of the most voluminous bundles in civil litigation. Medical records alone can run to hundreds of pages, and when you add the solicitor's file, multiple witness statements, forensic reports, and correspondence, bundles of 500 pages or more are not unusual. BundleCreator.co handles the heavy lifting:

• Automatic consecutive pagination across every section
• Indexed table of contents generated from your section structure
• PDF merging of scanned medical records, attendance notes, and exhibit bundles
• Electronic bookmark navigation for Chancery Division e-filing
• Pre-loaded document templates for witness statements and schedules of issues

Start building your will validity challenge bundle at BundleCreator.co — Chancery Division alignment, handled automatically.

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Frequently Asked Questions

How long do I have to challenge a will?

There is no single limitation period for all types of will validity challenge. Unlike Inheritance Act claims (which have a six-month time limit from the grant of probate), challenges based on capacity, undue influence, or want of due execution do not have a fixed statutory deadline. However, delay can be severely prejudicial: witnesses die or forget, documents are destroyed, and the court may draw adverse inferences from unexplained delay. As a practical matter, you should act as promptly as possible and consider entering a caveat to prevent the grant from being issued whilst you investigate.

Can I challenge a will without instructing a solicitor?

You can, and some litigants in person do so successfully. However, will validity litigation is technically demanding, particularly where medical evidence, forensic document examination, and privilege issues are involved. If you proceed without a solicitor, you should at minimum obtain specialist legal advice on the merits before issuing proceedings. BundleCreator.co can help you prepare a court-ready bundle, but it is not a substitute for legal advice on the substance of your claim.

What is the difference between challenging a will and bringing an Inheritance Act claim?

A will validity challenge seeks to have the will declared invalid — so that an earlier will or the intestacy rules apply instead. An Inheritance Act claim accepts that the will is valid but argues that its provisions fail to make reasonable financial provision for an eligible applicant. The two can be brought together, and frequently are, in the alternative.

How much does it cost to challenge a will?

Costs vary enormously depending on the complexity of the case and whether it settles or proceeds to trial. A straightforward capacity challenge that resolves at mediation may cost £15,000–£30,000 per side. A complex multi-ground challenge proceeding to a five-day trial can cost £100,000 or more per side. The court has a broad discretion as to costs in probate cases and may order costs to be paid from the estate, particularly where the testator's conduct contributed to the litigation.

What happens if I successfully challenge the will?

If the will is declared invalid, the estate is administered either under the most recent valid earlier will (if one exists) or under the intestacy rules set out in the Administration of Estates Act 1925. You do not automatically inherit — the outcome depends on which will or which intestacy rules apply, and your position under them.

Can a will be partially invalid?

Yes. The court can sever specific provisions from a will without invalidating the whole document. For example, if undue influence is established in relation to one gift but not others, the court may declare that gift void whilst upholding the remainder of the will. This is a nuanced area and the outcome depends on the construction of the will and the nature of the invalidity.

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This article is for general informational purposes only and does not constitute legal advice. Will validity challenges involve complex legal and evidential issues; you should seek specialist legal advice before taking any steps. References to legislation and case law are to the law as it stood in March 2026.