There’s a lot to consider before starting the legal process of contesting a will – without guarantees of a successful outcome.
Questions to ask include: Will the costs incurred outweigh the potential financial gain? Do you have enough evidence to support your case? Are you comfortable dealing with any conflict a claim could cause or exacerbate among family or anyone else involved?
Who can contest a will?
To contest a will, you will first need to show that you qualify as an ‘interested person’ and have valid legal reason to make a challenge.
A claim can be made by a beneficiary named in a prior or subsequent will or someone who has been excluded from the will; an ex-spouse, children, a partner, cohabitee or someone who was financially dependent on the deceased, known as the ‘testator’, or even an organisation.
Also potentially eligible are individuals entitled by law to inherit if the deceased did not leave a valid will, known as ‘intestate heirs’.
Reasons for contesting a will
If you do qualify, you then need to be certain that you have legal grounds. There can be a range of circumstances that could permit a will to be contested:
- Mental Capacity: You believe the deceased didn’t have mental capacity, under The Mental Capacity Act 2005. This is called ‘lack of testamentary capacity’, whereby the deceased was not of sound, or rational mind to be able to make their own decisions when writing the will. For example, it may be inferred that the deceased lacked capacity to make an informed decision about their will because they were showing signs of vulnerability; on medication during the time before writing the will; had dementia; or a severe learning disability. Each case will turn on its own facts requiring evidence to demonstrate that the person lacked Mental Capacity at the time of making the will.
- Lack of Due Execution: The person who made the will had not legally dotted the ‘I’s’ and crossed the ‘T’s’ so to speak. Given the rise in people making their own ‘DIY’ wills, there could be room for error if the deceased did not comply with the rules set out by the Wills Act 1837. Issues commonly arise for example in relation to witnesses and their signatures. Legally this is known also as ‘lack of valid execution’. Perhaps for example there is evidence that witnesses who signed the will were not in fact present at the same time as the person writing the will.
- Lack of Knowledge or Approval: The person signing the will didn’t understand what they were signing or the content of their will, due to perhaps a disability such as blindness or illiteracy.
- Fraud: Grounds for fraud may be established where there is evidence that the will has been destroyed, the signature doesn’t appear to be valid or there is legal negligence.
- Undue Influence or Coercion: The person was seen to be under duress when writing the will and there is evidence to prove this.
- Challenge Trustees or Executors: You may feel there is a dispute over the conduct of trustees or executors, or they have shown signs of mis-management.
This is a non-exhaustive list. Contesting a will can fall under many reasons which must be supported by law which your legal adviser will identify, such as:
- Proprietary Estoppel: Whereby the testator advised a beneficiary informally that they were going to leave something to them but it was not included in their will.
- Inheritance (Provision Families and Dependants) Act 1975 – Inheritance Act for family members and their dependants.
How long do you have to contest a will?
In terms of timings, if the claim is related to the Inheritance Act, then you have six months from the issue date of the ‘Grant of Probate’/Grant of Letters of Administration’ to make a claim.
For other circumstances, the time limit can be up to 12 years.
For grounds of fraud there is no timeframe, as outlined in the Limitations Act 1980.
What is the process for contesting a will?
The following steps are a guide on what to expect:
- STEP 1: Once you have chosen a solicitor, they will advise if there are grounds for contesting the will and if you have a legal right to challenge it.
- STEP 2: If you have grounds to contest the will and if probate is relevant and has not yet been granted, then your solicitor can request a ‘caveat’ to delay probate by six months. This acts like an injunction so it holds assets from the will for this time period, awaiting the outcome of the challenge towards the will.
- STEP 3: Litigation is costly and time-consuming. Before you proceed, your solicitor will initially advise that you look at Alternative Dispute Resolution try to settle ‘out of court’. Using mediation for example to try to negotiate with key parties (e.g. beneficiaries and the executor of the will) and bring the matter to a resolution without the need to go before the court. Where this fails to be resolved If this does not give a favourable outcome, then go to STEP 4:
- STEP 4: Your solicitor will complete and submit a claim on your behalf to the court.
Contesting a will: a challenging process
Contesting a will can seem a complicated and potentially costly process.
From the outset, you should be clear on your grounds for challenge.
Engaging a solicitor with specialist experience in this area to advise on the merits of your case and if you are within the relevant timeframe.