At Blackstone Solicitors, we regularly advise clients across England and Wales on how to challenge a will. One question we are often asked is whether a dispute can be raised before probate is granted. The answer is yes — and in many cases, it is preferable to act early, as it can help prevent the estate being distributed before the matter is resolved.
This article explains what probate is, why you might wish to challenge a will before it is granted, the legal grounds available, and the practical steps involved.
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Understanding probate
Probate is the legal process that gives the executors named in a will the authority to administer the deceased’s estate. It involves:
- Identifying and valuing the deceased’s assets and debts
- Applying for a grant of probate (if there is a will) or letters of administration (if there is no will)
- Collecting in the assets, paying debts and taxes, and distributing the estate to beneficiaries
Once probate is granted, the executors can legally transfer property, money, and possessions to beneficiaries. This means that if you want to challenge the validity of the will, doing so before probate can prevent assets being distributed prematurely.
Why challenge before probate?
There are several reasons why taking action before probate is granted can be beneficial:
- Preserving the estate — Assets are less likely to be sold or transferred before the dispute is resolved.
- Simpler recovery — If the estate has not been distributed, you avoid the difficulty of recovering assets from beneficiaries later.
- Procedural control — Entering a legal block on probate can give time for proper investigation and negotiation.
Legal grounds for challenging a will
Before probate is granted, you can raise any of the recognised legal grounds for disputing a will. These include:
- Lack of testamentary capacity
The person making the will (the testator) must have understood:
- That they were making a will and the effect it would have
- The nature and extent of their property
- The claims of those who might expect to benefit
- That they were not suffering from a mental disorder influencing their decisions
If they lacked this mental capacity — for example, due to dementia — the will may be invalid.
- Lack of valid execution
Under the Wills Act 1837, a will must:
- Be in writing
- Be signed by the testator (or by someone else at their direction)
- Be signed in the presence of two witnesses present together, who also sign in the testator’s presence
Failure to follow these rules can render the will invalid.
- Lack of knowledge and approval
Even if validly executed, the testator must have known and approved the will’s contents. Suspicious circumstances — such as unexpected changes in favour of one person — can give rise to a challenge.
- Undue influence
If the testator was coerced or pressured into making the will in a way that did not reflect their true wishes, this is grounds for challenge. Proving undue influence can be difficult, as it often relies on circumstantial evidence.
- Fraud or forgery
If the will, or part of it, has been forged or obtained by deceit, it is invalid. This may involve falsified signatures, substituted pages, or misleading the testator about key facts.
How to stop probate from being granted
The main tool for challenging a will before probate is to enter a caveat.
What is a caveat?
A caveat is a formal notice lodged at the Probate Registry that prevents a grant of probate or letters of administration from being issued.
- A caveat lasts for six months, but can be renewed before it expires.
- It can be entered by anyone who believes they have an interest in the estate and who has concerns about the validity of the will or the entitlement of the applicant for probate.
How to enter a caveat
Your solicitor will prepare and lodge the necessary form with the Probate Registry, together with the required fee. Once entered, the caveat stops the probate process until it is removed or expires.
What happens next?
If the executors or administrators dispute the caveat, they can issue a warning. You then have 14 days to enter an appearance at the Probate Registry, which sets out your interest in the estate and the reasons for the caveat. If you do not respond, the caveat will be removed.
Investigating the claim
Once probate is paused, your solicitor will help you gather evidence to support your challenge. This may include:
- The will file from the solicitor or will-writer
- Medical records of the testator
- Statements from witnesses, friends, and family
- Expert reports (for example, handwriting analysis)
Investigating before probate is granted can make evidence easier to obtain, as it is closer in time to when the will was made.
Attempting settlement
Many will disputes settle without going to court. Early negotiation or mediation can:
- Save time and costs
- Reduce stress and preserve family relationships
- Allow creative solutions that a court might not impose
If settlement is reached, probate can proceed on agreed terms or under a different will.
Court proceedings
If agreement cannot be reached, you may need to issue court proceedings to have the will declared invalid or to resolve the dispute.
The court will consider all the evidence and, if the will is declared invalid, the estate will be distributed according to an earlier valid will or the intestacy rules.
Time limits
There is no fixed statutory time limit for validity challenges, but delay can cause serious practical problems. For other types of claim — such as those under the Inheritance (Provision for Family and Dependants) Act 1975 — the time limit is usually six months from the date probate is granted. Acting before probate is issued can give you valuable time to prepare.
Costs and risks
Challenging a will can be expensive. In most cases, the losing party is ordered to pay the winning party’s costs, although the court can order costs to be paid from the estate where there was genuine doubt about the will’s validity.
Your solicitor will discuss funding options, which may include “no win, no fee” arrangements in appropriate cases.
Preventing disputes before they arise
If you are making your own will, you can reduce the risk of future challenges by:
- Using a qualified solicitor to prepare the will
- Following the formalities under the Wills Act 1837
- Keeping detailed records of your decisions and instructions
- Obtaining medical evidence of capacity if there may be concerns
- Ensuring independent witnesses are present
How Blackstone Solicitors can help
We have significant experience in will disputes and regularly assist clients in challenging a will before probate. We can:
- Assess the strength of your claim quickly and clearly
- Enter a caveat to stop probate being granted
- Gather and analyse the evidence needed to support your case
- Negotiate settlements to achieve fair outcomes without litigation
- Represent you robustly in court if necessary
We understand that these disputes are often both legally complex and emotionally sensitive. Our aim is to protect your interests with skill, discretion, and determination.
Key takeaways
- It is often advantageous to challenge a will before probate is granted
- Entering a caveat stops probate and gives time to investigate
- Valid grounds include lack of capacity, lack of due execution, undue influence, fraud, or lack of knowledge and approval
- Early action makes it easier to preserve the estate and gather evidence
- Specialist legal advice is essential to maximise your prospects of success
Conclusion
Challenging a will before probate is not only possible but can often be the most effective way to protect your rights. Acting early can prevent the estate from being distributed prematurely, preserve assets, and give you time to build a strong case.
If you have concerns about the validity of a will or the entitlement of an executor, you should seek expert legal advice without delay. At Blackstone Solicitors, we will act swiftly to protect your position, guiding you through every step of the process with clarity and commitment.
How we can help
We have a proven track-record of helping clients deal with contesting a Will. We are a multidisciplinary firm and have all the expertise inhouse to satisfy the most exacting requirements of our clients. We will guide you through all the necessary legal due diligence in a comprehensive and timely manner. We firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
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How to Contact Our Wills and Probate Solicitors
It is important for you to be well informed about the issues and possible implications of contesting a will. However, expert legal support is crucial in terms of ensuring your wishes are met as you would want them to be.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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