The court requires documented proof that the will is legally defective. The most important categories of evidence are:
- Medical records — where testamentary capacity is the issue, GP notes, hospital records, psychiatric assessments, and care home files
- The solicitor’s or will writer’s file — attendance notes, drafts, and correspondence from the firm that prepared the will
- Witness statements — accounts from carers, family members, friends, or professionals who observed the testator around the time of giving instructions and signing the will
- Previous wills — earlier versions showing a pattern of intentions that the final will departed from
- Digital evidence — emails, text messages, WhatsApp conversations, voicemails, and social media posts
- Forensic reports — handwriting analysis, ink testing, and document examination where forgery is alleged
Medical records
Medical records are the foundation of most claims. The legal test for capacity comes from Banks v Goodfellow (1870): the testator must have understood what a will does, known the broad extent of their estate, and been aware of the people who might expect to benefit.
GP notes, hospital discharge summaries, and psychiatric assessments showing cognitive decline close to the date the will was signed can be invaluable evidence.
Where the records are helpful but not definitive, a retrospective capacity assessment from a consultant psychiatrist is usually necessary.
Solicitors’/ will writers’ file
The will file is often the most revealing.
It shows how instructions were taken, whether concerns about capacity were raised, and whether the solicitor followed the Golden Rule, as endorsed in Kenward v Adams (1975), by obtaining an independent medical opinion before preparing a will for an elderly or seriously ill testator.
If that opinion exists and is positive, a capacity challenge is not viable. If it was never obtained, other evidence such as the solicitors’/ will writers’ notes on how capacity was assessed and how long they had known the testator became highly relevant.
Witness statements
Witness statements carry weight when they describe specific, observed events rather than general impressions. A carer’s account of the testator failing to recognise family members in the weeks before signing is far more useful than a relative saying they seemed confused.
Contemporaneous accounts, such as diaries, letters, notes written at the time are treated as more reliable than recollections given months later.
Previous wills & digital evidence
Previous wills, digital evidence, and forensic reports can also provide valuable evidence.
Earlier wills establish a pattern of intentions that the court will want explained if the final will departs significantly from them without logical explanation. Text messages and emails can capture the testator’s state of mind or reveal pressure from a third party, but this material must be preserved quickly, before phones are wiped and accounts are closed.
Expert forensic document examination is essential where forgery is alleged, and while expensive, it is often decisive.
Paul Walshe, Partner and Head of Contentious Probate at Awdry Law, says: “The strength of a will challenge almost always comes down to the quality and breadth of the evidence gathered early on. Medical records and contemporaneous witness accounts are frequently the difference between a claim that succeeds and one that fails.”
What separates a strong claim from a weak one?
Timing is the biggest differentiator.
Evidence created at or near the time the will was signed, for example, a GP note from that week or month, an attendance note from the drafting meeting, a text message contemporaneously, is treated as far more reliable than a statement prepared for litigation two years later.
The court calls this contemporaneous evidence, and it carries disproportionate weight.
Corroboration of evidence.
The witnesses to will disputes are often family members who stand to gain or lose financially on the outcome of the case. The weight of their evidence is therefore reduced in the eyes of the court because it is self-serving.
The evidence of independent witnesses who have no axe to grind against any of the parties to the proceedings and who knew the deceased’s intentions and state of mind at the time of the will provide far more valuable evidence.
Two or more independent sources pointing to the same conclusion, such as a medical record, a carer’s diary entry, and a neighbour’s account all describing confusion in the same period significantly increase the prospects of success.
The court looks at the totality of the evidence, and claims built across multiple categories (medical, witness, documentary, forensic) are inherently stronger than those resting on one pillar.
Expert evidence can be the deciding factor
In capacity cases, a retrospective opinion from a consultant psychiatrist or geriatrician, based on the available medical and other contemporaneous records, is often the single most influential piece of evidence.
In forgery cases, a forensic document examiner’s report can resolve the question entirely.
The cost of instructing an expert is significant, but in the right case, it transforms the prospects.
Will claims fail for predictable reasons. The most common is that the claimant has a strong emotional conviction but weak documentary support; often, a feeling that the will is unfair, without medical records, file notes, or independent witnesses to back it up.
Undue influence, for example, is notoriously difficult to prove without evidence of the mechanism by which the pressure was exerted. Suspicion and motive are not enough.
Call our contentious wills and probate team today on 01225 417111 to arrange a no obligation consultation or complete our quick enquiry form, and we’ll reply to you promptly.
Is contesting a will ever successful?
Will challenges regularly succeed in England and Wales, but success depends heavily on the evidence available and the legal grounds for the challenge.
Will contests based on lack of capacity or undue influence, supported by contemporaneous medical records and credible witness accounts, have strong prospects where the evidence is clear.
The cases that settle or succeed at trial tend to share certain features:
- early instruction of a solicitor,
- prompt preservation of evidence,
- a clear legal ground supported by more than one category of proof,
- and a willingness to engage in negotiation or mediation before resorting to court proceedings.
The cases that fail tend to involve late evidence gathering, reliance on a single source, or a ground that amounts to dissatisfaction rather than a demonstrable legal defect.
What evidence defends a will against a challenge?
The same material that supports a challenge can also defeat one. If you are an executor or a beneficiary defending a will or inheritance act claim, the question is whether the evidence shows the will was properly made.
A contemporaneous capacity assessment is the strongest single piece of defensive evidence. Where the drafting solicitor obtained a medical opinion confirming the testator’s capacity on the day of signing, a challenge based on lack of capacity faces a very high bar.
The attendance notes matter almost as much. Detailed notes recording clear instructions, coherent conversations, and no sign of third-party pressure make it difficult for a claimant to argue the testator did not know what they were doing.
Witness evidence from the people who were present at the signing can defeat an improper execution claim. If both attesting witnesses confirm the testator signed voluntarily and appeared to understand the document, the challenge is very difficult.
Where a challenge has already been raised, the best way to prevent it from escalating is to respond swiftly, take legal advice, and consider whether early negotiation or mediation can resolve the dispute before court proceedings become necessary.
Speak to Awdry Law’s Contentious Probate Solicitors
One of the most important questions clients ask is whether a challenge is worth the cost. Our role is to give you an honest assessment of the evidence, the likely costs, and the realistic prospects of success, so you can make an informed decision without any surprises.
Whether you are considering contesting a will, responding to a challenge, or seeking advice as an executor, we provide clear, practical advice from the outset.
We work to resolve will disputes efficiently and sensitively, through negotiation and mediation wherever possible, and through court proceedings where necessary.
Contact our contentious wills and probate team today on 01225 417111 to discuss your circumstances in confidence.
