Concerns about a Will: capacity, understanding and undue influence

31st Jul 2026

Author: Samuel Dale

A parent changes their Will shortly before death. One relative receives more than expected and the family did not know that a new Will had been made. The person relied heavily on the beneficiary and may have had problems with their health or memory. Samuel Dale, a Wills and Probate expert at Butcher & Barlow, explains when these circumstances may justify further investigation.

These circumstances may raise concerns, but they do not make the Will invalid. A Will is not invalid simply because its terms appear unfair or unexpected. The question is whether the person had the ability to make it, understood and approved its contents and made the decision freely.

Lack of testamentary capacity, lack of knowledge and approval and undue influence are different grounds for challenge. Each requires different evidence.

Concerns do not necessarily mean that a Will is invalid

People are generally free to leave their estate as they choose, even if relatives consider the decision unexpected or unfair.

A late change, the exclusion of a close relative or a substantial gift to one person may justify questions. None proves that anything improper happened. A challenge must be based on a recognised legal ground and supported by evidence.

What questions should be considered?

Did the person have testamentary capacity?

Testamentary capacity means having the mental ability to make a valid Will. The legal test comes from Banks v Goodfellow.

In broad terms, the person must understand that they are making a Will and what it will do. They must have a general understanding of the property involved, consider the people who might expect to benefit and make their decisions without a disorder of the mind affecting the outcome.

A diagnosis of dementia or another illness does not automatically mean that capacity was lacking. Poor memory is not conclusive either. The evidence must relate to the person and the particular Will.

Did they understand and approve the Will?

This is often called knowledge and approval. It asks whether the person understood the document they signed and accepted that it recorded their wishes.

Concerns may arise where the person signed a document they could not read, the contents were not properly explained to them or the Will contains provisions that are difficult to reconcile with the instructions recorded by the Will writer.

Further scrutiny may also be needed where someone else arranged the appointment, helped to give instructions or was closely involved in preparing the Will, particularly if the terms differ significantly from the person’s earlier wishes.

A beneficiary’s involvement does not make a Will invalid by itself, but it may require closer examination.

Was the decision freely made?

Undue influence means coercion. The pressure must be strong enough to overpower the person’s wishes so that the Will reflects someone else’s decision.

Persuasion is not necessarily unlawful. A relative may explain their needs or encourage someone to change their Will. The question is whether the person made their own decision or was driven into one they did not want.

What warning signs may justify investigation?

There is no checklist that proves a Will is invalid. Concerns may be stronger where several circumstances appear together, including:

• an unexplained change from an earlier Will
• increasing dependence on one beneficiary
• isolation from relatives or friends
• declining health or fluctuating mental ability
• a beneficiary arranging meetings or giving instructions
• secrecy surrounding the preparation or existence of the Will

These are reasons to ask questions, not proof of wrongdoing.

What evidence is needed?

Relevant evidence may include the disputed Will, earlier Wills, letters of wishes, the file of the Solicitor or Will writer, medical and care records and evidence from people who saw the person at the relevant time.

A Solicitor may begin by obtaining a copy of the disputed Will and any earlier Wills, together with the file of the person who prepared it. That file can show who arranged the appointment, what instructions were given, whether the person was seen alone and whether any concerns about capacity or pressure were recorded. Medical records and witness evidence may then be considered alongside that file to build a clearer picture of the circumstances in which the Will was made.

The professional file may show who arranged the appointment, who attended, what instructions were given and whether the person was seen alone. Messages and evidence from relatives, friends, carers or other professionals may help build a timeline.

An allegation that someone “must have influenced” the person is not enough. The events, conduct and documents relied on must be identified clearly. Undue influence is a serious allegation and should not be made without a proper assessment of the evidence. The court rules require details of alleged undue influence to be set out specifically if proceedings are issued.

What does Rea v Rea tell us about undue influence?

The Court of Appeal decision in Rea v Rea [2024] EWCA Civ 169 shows why suspicious circumstances do not necessarily prove coercion.

The case involved an elderly mother who left her home to the daughter who cared for her rather than dividing it between her four children as an earlier will had done. She depended on the daughter and the new Will was not disclosed to the other children during her lifetime.

Despite this, the Court of Appeal found that undue influence had not been proved. There was evidence that the mother consistently wished to benefit her daughter, including when the daughter was not present. She was also capable of rejecting her daughter’s suggestions.

The court confirmed that undue influence can be proved through surrounding circumstances where no direct evidence exists. However, coercion must be more probable than other explanations, such as a free decision or lawful persuasion.

What should you do if you are concerned?

Seek advice as early as possible, particularly if the Estate has not yet been distributed. A Solicitor can identify the possible grounds for challenge, obtain relevant documents and assess whether the evidence supports further action.

The first step is usually to investigate the evidence and raise appropriate questions. Depending on what that investigation shows, the parties may be able to resolve the dispute through correspondence, negotiation or mediation. Court proceedings may be required where the validity of the Will remains disputed, but they are not always the starting point.

If the disputed Will is declared invalid, an earlier valid Will may take effect. If there is no earlier valid Will, the Estate will usually be distributed under the Rules of Intestacy.

Our Contentious Probate Team advises people concerned that a Will may not reflect the person’s valid and freely made wishes. We also assist executors and beneficiaries responding to a challenge.

We will explain the evidence, risks, options and likely costs. Where possible, we will explore resolving the dispute without court proceedings.

To discuss your concerns with Samuel Dale or another member of our Contentious Probate Team, email Samuel at sdale@butcher-barlow.co.uk or call 01270 762521.

Information in this article was correct at the time of publication. The information is for general guidance only. Laws and regulations may change, and the applicability of legal principles can vary based on individual circumstances. Therefore, this content should not be construed as legal advice. We recommend that you consult with a qualified legal professional to obtain advice tailored to your specific situation. For personalised guidance, please contact us directly.