Challenging a Will on Grounds of Testamentary Capacity

Contentious probate lawyers often field calls from aggrieved children (or other family members) who are concerned after finding themselves omitted from their late parent’s last Will and Testament. The thought of a parent intentionally leaving them out of their Will naturally leads the aggrieved party to question whether the testator was ‘thinking correctly’ when they executed their Will, or whether they had sufficient ‘testamentary capacity’ to do so.

If you find yourself in a similar situation, we recommend speaking with a contentious probate lawyer at the earliest opportunity to understand your position in more detail and to take advice on your initial steps.

How Can Pinney Talfourd Assist?

At Pinney Talfourd, we offer a complimentary initial half-hour meeting to discuss the facts and merits of your case, and the evidence necessary to further your claim, as outlined below.

Following this meeting, our contentious probate lawyers are available to assist with each step you may wish to take in obtaining the necessary evidence and developing your claim further.

We typically advise obtaining the evidence discussed below.

1. Gather the Facts as You Know Them

Start by pulling together the basic information:

• When was the Will made?
• What was your parent’s health like at that time?
• Were they showing signs of memory loss, confusion, or difficulty making decisions?
• Did anything happen shortly before the Will was prepared, such as a hospital admission or major illness?

This initial information helps us understand whether there may genuinely be a capacity issue, rather than a disagreement about who “should” have inherited.

2. Put a Pause on Things: Consider a Caveat

If probate has not yet been granted, you may be able to place a “caveat” with the Probate Registry. This is a legal mechanism that temporarily prevents the Will from being processed for six months while enquiries are made.

A caveat is not something to consider lightly, but it can prevent assets from being distributed before you have had the opportunity to investigate the situation properly.

3. Ask for the ‘Will File’ and Consider a Larke v Nugus Request

To understand how the Will came to be prepared, it is often necessary to review the notes and records of the person who prepared and executed the Will. The Will file will usually include information about:

• What was said during meetings with the testator
• How instructions were given
• Whether the person drafting the Will noticed any confusion or memory difficulties
• Who was present during preparation and execution of the Will

If you have serious concerns, you may also wish to send what is known as a Larke v Nugus request to the Will-drafting solicitor. This is a formal request for a detailed written statement explaining how the Will was prepared, what the testator said, and what checks were made to ensure they understood what they were doing.

A Larke v Nugus request is a recognised way of obtaining clarity and transparency around the preparation of the deceased’s Will. Sometimes the response will provide reassurance that everything was done properly; in other cases, it may highlight issues requiring further investigation.

4. Look at the Medical Background

A key part of any capacity enquiry is the deceased’s medical history at the time the Will was made. This may include:

• GP records
• Hospital notes
• Care home reports

These records can help build a clearer picture of whether the deceased was capable of understanding the Will they signed. For example, they may reveal a diagnosis of dementia, a sudden cognitive decline, or episodes of delirium, all of which can affect capacity.

5. Compare the Will to Previous Wishes

One of the most significant warning signs is a Will that makes a sudden and unexplained change, such as disinheriting children entirely or leaving everything to a new acquaintance or carer.

Reviewing previous Wills, letters, or long-standing intentions can help establish whether the final Will reflected the deceased’s true wishes, or whether it appears out of character or suspicious.

This type of analysis can form a key part of the evidence if you decide to proceed with a claim of this nature.

Speaking with a Contentious Probate Lawyer

Once the initial information has been gathered, the next step is usually to raise your concerns formally with the executors of the Will. This is typically done by way of a solicitor’s letter setting out the issues identified, the evidence obtained, and the next steps that you and your contentious probate lawyer at Pinney Talfourd consider appropriate.

To book a free consultation, please contact a member of our team on 01277 211 755.