FREE CHAPTER from ‘A Practical Guide to Challenging a Will Due to Undue Influence or Fraudulent Calumny’ by Evan Price


Many discussions about wills and inheritance should probably start by stating something that may not always appear that obvious: beneficiaries do not have a right to inherit material things; rather inheritance is a windfall. You cannot assume that you will inherit a parent’s skills and abilities – and assuming that you will inherit their assets or wealth and basing your future financial planning on that assumption is potentially rather risky.

A will maker can decide to give nothing to relatives at all and that will be a decision that cannot be challenged, save in particular circumstances some of which are considered in this guide.

The words ‘testator’ and ‘testatrix’ are often used elsewhere, but in this guide, I will use the words ‘will maker’ to refer to the person making the will as it is neutral. In many of the judgments that I will refer to, the older language will be used.

When I am writing about the person who drafts the text of the will, I will use the words ‘will writer’. In many cases, this will be someone who has professional qualification – a lawyer, financial advisor or a someone who has qualifications and membership of an organisation such as the Society of Will Writers. It may also be someone who has no qualifications at all.

Disputes about wills and estates are very often nasty in tone and content. They can be immensely personal, destabilising and even threatening. Challenges to what appear otherwise to be valid wills are usually based on five different types of claims: –

  1. That the will was forged or fabricated;

  2. That the will maker did not have the capacity to make the will at the time it was made;

  3. That the will maker did not know or understand the will that was made;

  4. That the will maker was unduly influenced into making the will; and

  5. That the will was procured from the will maker by fraud or fraudulent calumny.

Forgery and fabrication occur when someone forges or fabricates the document that is presented as the will of the deceased. These claims fall outside the scope of this guide.

When it comes to undue influence and fraud, including fraudulent calumny, the personal animus and general nastiness of these disputes can reach extremes that often result in the breakdown of personal relationships that can never be repaired afterwards. The result is that these claims should not, if the personal relationships are important to the parties involved, be made lightly, easily or without careful consideration and an understanding of the potential consequences of them.

This book is intended to be a practical guide to how challenges to wills on the grounds of undue influence and fraudulent calumny can be brought, what the legal issues are that arise from such challenges and what evidence may be required to what degree in order to succeed in such challenges.

This book concerns the law in England and Wales and every attempt has been made to ensure that the law is current as at 1st November 2021.

Some things to remember

Wills are documents that are not easily defined – in simple terms they are a document in which the will maker sets out, while they are alive, what he or she would like to happen to their property after they have died. They can be simple documents, or very complicated documents.

Wills are, by their very nature, usually of no legal effect until after the will maker has died. An exception exists in the case of mutual wills: where two people make wills that are executed and after the death of one mutual will maker, the other, still alive, is obliged to keep to the mutual will that they have already executed. Disputes about mutual wills fall outside the scope of this guide too.

Detailed analysis of the issues that are set out in this introduction and their consequences go beyond the scope of this guide, but as you will read, some of these issues are also relevant to questions of undue influence and fraud and will be considered in more detail and in that context.

Testamentary freedom

When making a will, a will maker has complete testamentary freedom. In the words of one judge,

“… a man has absolute dominion over his own property, and if he being in possession of his faculties thinks fit to make a capricious will, a harsh will, or a cruel will, you have no right to set it aside on that ground, for that would be interfering with the liberty which the law gives him and not to allow him to make his will.”1

While this complete freedom has been constrained by provisions such as those found in the Inheritance (Provisions for Families and Dependants) Act 1975 and its predecessors, the essential freedom stated here remains good law and unless and until there is a challenge to the will, the will maker can leave their property pretty much as they wish.

Many continental and other jurisdictions do not adopt this freedom and some care needs to be exercised when dealing with assets, particular land and real property, in those jurisdictions, even where the will maker was domiciled and resident in England and Wales and where the will is being administered in England and Wales. When dealing with estates where there is land or real property in the EU, will makers and advisors must consider to the effect of the EU Succession Regulation2. This regulation has a very long name and is often referred to as Brussels IV. Further consideration of Brussels IV falls outside the scope of this guide.


A will maker must have what lawyers call ‘testamentary capacity’ to make a will. In many older cases, this is referred to as a ‘sound disposing mind’. A person without testamentary capacity is incapable of making a will. Even if that person recovers, the invalid will remains invalid unless it is re-executed after recovery.3 Where the person becomes incapable after making a valid will, the fact of that later loss of capacity will not mean that the valid will becomes invalid.4

Although increasingly irrelevant due to the passage of time, the reader should note that a will made after 1 January 1970 by people aged 18 and over are valid in law; however, valid wills made by people under 21 before 1 January 1970 and otherwise valid wills made at any time by individuals under the age of 18 (subject to a limited number of exceptions5) will not be valid in law.6 Since that date, a valid will made on someone’s 18th birthday will be valid in law.

The Mental Capacity Act 2005 does not, it appears, apply to wills (save for statutory wills made with the assistance of the court after 1 April 2007) and so I will not be dealing with these issues in this guide7.

The will maker must be shown to have had testamentary capacity at the time the will or codicil was made8. This has been held to require that capacity both when the instructions are given and when the will is executed (signed and witnessed). The will may still be valid if it is drawn up on the basis of valid instructions when the will maker was of sound mind and the execution is done at a time when the will maker understands that he or she is making a will in accordance with his or her instructions and in spite of the fact that he or she is not able to follow all of the provisions of the will9.

To prove capacity, it will be necessary to show four things.

  1. The will maker must understand that he or she is giving his or her property to ‘one or more objects of his or her regard’.

  2. The will maker must understand and recollect the extent of his or her property, although the precise nature and value of the property is not usually necessary.

  3. The will maker must understand the nature and extent of the claims upon him or her both those he or she is including in the will and those being excluded.

  4. No insane delusion can influence the will maker in disposing of property or bring about a disposal of his or her property which, if the will maker had been of sound mind, would not have been made.

These requirements are drawn from the judgment of Cockburn CJ in the case of Banks v Goodfellow (1870) LR 5 QB 549.

There is a presumption that a will maker was sane at the time they made the will10, but if capacity is doubted, the burden to prove capacity will be on the person seeking to prove and rely on the will (lawyers will say ‘propounding’ the will)11.

Knowledge and approval

When the court considers a will being proved for probate, the person proving the will must be able to show that the will maker knew of the contents of the will and approved of them12. Usually, this is achieved by proving a duly executed will, but in some cases, the court will ask for further proof.

Where a professionally drafted will has been read over to the will maker, or the contents of the will have been brought to the will maker’s attention in some other way, and the will is then duly executed, there is a presumption of knowledge and approval, although in extreme circumstances, even that may not be enough.13

Where the will maker is deaf and dumb14, or blind15, and where the person who prepared the will received a benefit from it16, the court will probably want more evidence that the will maker knew of and approved of the will.

Sometimes, facts are given that ‘excite the suspicion’ of the court17. These can include evidence of the relationship between the will maker and beneficiaries and those that prepare the will. In these cases, the court may wish to enquire further as to whether the will maker knew of and approved of the will.

Evidence and burden of proof

In many (if not all) claims challenging the will, both the capacity of the will maker and the knowledge and approval of the will maker will be raised. In these cases, there is a burden on the person seeking to prove and rely on the will to satisfy the court that the will is the last will of a free and capable testator18.

In practice, where the will is duly executed, the court will assume, without more, that the will was the last will of a free and capable testator19.

Where there are circumstances in which the court’s suspicions are aroused, the person seeking to prove the and rely on the will must prove that the will maker had capacity and knew of and approved of the will. That the will did reflect the wishes of the deceased20.

The standard of proof required by the court is the civil standard – on balance of probabilities21. The court may infer from the circumstances whether the will maker had capacity and whether the will maker knew of and approved of the will. The extent of the evidence that a court will require will inevitably depend on the seriousness of the evidence that is given to arouse the suspicion of the court.

There will be circumstances where the evidence to arouse the suspicion of the court will also be relevant to a plea of undue influence and fraud. As a result, it is often the case that the three claims are made simultaneously. Failing to plead undue influence and or fraud will not preclude the court examining that issue or finding that it is proved in an appropriate case.

Other books and guides deal with the issues of forgery and fabrication, mental capacity and want of knowledge and approval and anyone dealing with these issues should refer to those books and guides for more advice about challenging wills on those grounds.


1 Cresswell J, Earl of Sefton and anr v Hopwood (1858) 175 ER 860

2 Regulation (EU) No 650/2012.

3 Bunter v Coke (1707) 1 Salk 237, Willock v Noble (1875) LR 7 HL 580

4 Forse and Hembling’s case (1588) 4 Co Rep 60 b

5Servicemen and women on active service and seamen and women at sea

6 Wills Act 1837, s.7

7 Re Walker, Walker v Badmin [2015] WTLR 493

8 Re Wilkes dec’d, Wilkes v Wilkes [2006] WTLR 1097

9 Perera v Perera [1901] AC 354

10 Wellesley v Vere (1841) 2 Curt 917

11 Re Flynn, Flynn v Flynn [1982] 1 All ER 882

12 Re Wilkes dec’d (see note 7 above); Re Baker, Baker v Baker [2008] EWHC 937 (Ch)

13 Gill v Woodall [2010] EWHC Civ 430

14 Dickinson v Blisset (1754) 1 Dick 268

15 Fincham v Edwards (1842) 3 Curt 63

16 Fulton v Andrew (1875) LR 7 HL 448

17 Cowdery v Cranfield [2011] EWHC 1616 (Ch)

18 Barry v Butlin (1838) 2 Moo PCC 480

19 Fuller v Strum [2001] EWCA Civ 1879, [2002] 1 WLR 1097

20 Fuller v Strum (see note 18 above), per Peter Gibson LJ at p.1107

21 Fuller v Strum (see note 18 above), per Chadwick LJ at p.1120