If you are considering contesting a will, there will be a number of questions to ask about the process, the costs and whether you in fact have the right to bring a legal challenge.
In all cases, you will need to act quickly as strict time limits apply and the more time that passes, the harder it generally becomes to successfully contest.
Can you contest a will?
To contest a will, you will first need to show that you have the right to bring a claim and that you qualify as an ‘interested person’.
The Inheritance Act 1975 details who can make a claim and contest a will.
A claim can be made by direct family members, including children or grandchildren, a spouse, a beneficiary named in a prior or subsequent will, a person who relied on the deceased financially, a creditor to whom the deceased owed money or a person who was promised an item by the deceased, but this was not included in the will.
Also potentially eligible are individuals entitled by law to inherit if the deceased did not leave a valid will, known as ‘intestate heirs’.
Can I contest a will if I am an executor?
Executors are able to contest a will since they can be named beneficiaries. They must however make their claim within six months of the grant of probate and before taking on on any of the duties as an executor.
If you have already commenced your duties, you would need to renounce your appointment as executor.
Legal grounds for contesting a will
As well as having the right to contest a will, you would also need to have legal grounds. Valid reasons for contesting the will could include:
Lack of testamentary capacity
This would apply where you believe the deceased did not have mental capacity, as prescribed 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, or had dementia or a severe learning disability.
Each case will turn on its own facts requiring evidence to be shown that demonstrates the deceased person lacked mental capacity at the time of making the will.
Lack of due execution
This refers to a situation where it is believed the deceased had not legally dotted the ‘I’s’ and crossed the ‘T’s’ when making the will. Given the rise in ‘DIY’ wills and more people opting not to take specific legal advice, 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. Perhaps there is evidence that witnesses who signed the will were not in fact present at the same time as the person writing the will. This is known also as ‘lack of valid execution’.
Lack of knowledge and approval of the will
This may apply where the person signing the will did not understand what they were signing or the content of their will, due to a disability such as blindness or illiteracy.
Undue influence or duress
This is where the person was seen to be under duress when writing the will and there is evidence to prove this.
Fraud or forgery
Grounds for fraud may be established where there is evidence that the will has been destroyed, the signature does not appear to be valid or there is legal negligence.
Rectification and construction
This could apply if a will is ambiguous, unclear or does not carry out a person’s intentions or wishes.
Challenging 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.
The above is a non-exhaustive list. Contesting a will can fall under many other reasons, supported by law and with evidence, 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.
Taking early legal advice can help to understand your options and the evidence that will be needed to support your claim.
How long do you have to contest a will?
Generally, contested probate time limits vary depending upon the type of claim being made.
For other circumstances, the time limit can be up to 12 years.
For grounds of fraud there is no timeframe.
|Type of claim||Time limit to bring action|
|Inheritance Act claim for maintenance||6 months from date of Grant of Probate|
|Beneficiary making a claim against an estate||12 years from date of death|
|Fraud||No time limit|
Can you contest a will after probate?
While it is advisable to contest a will before probate, it may still be possible to make a claim after probate.
Putting a caveat on the estate before probate is issued will prevent executors disposing of the estate assets, allowing the solicitor time to conduct a full investigation.
What is the process for contesting a will?
First, you should find and appoint a legal adviser who will assess your case and advise if you have both the legal grounds and the right to contest the will.
Specific details of your case will need to be examined, such as whether any kind of restriction against disposition is needed in relation to property owned by the deceased.
It will also be important to determine how the will was made, and if a statement is needed from the will maker outlining the dealings with the person who made the will.
If probate has not yet been granted, your legal adviser would usually move to request a caveat is placed on the estate to delay probate by six months while the outcome of the challenge is determined.
Your legal adviser will draft a Letter of Claim to the opposing party and/or deceased’s Executors. outlining why you are contesting the will and the remedy or outcome you want.
To resolve the issue, alternative forms of dispute resolution may be explored to avoid the matter going before court. Mediation, for example, is commonly used to negotiate a settlement between the contestor and the executor and beneficiaries.
Should attempts to resolve the matter out of court fail, your legal adviser can guide you through the litigation process by submitting a claim to the court.
How long does contesting a will take?
Contesting a will can take anywhere from a few months to potentially years to resolve. Much will depend on the circumstances of the challenge, the nature of the relationship between the parties and whether a settlement is reached. Cases that go to court take longer.
What are the costs for contesting a will?
If considering contesting a will, you will also want to understand how much it is likely to cost.
Many legal advisers now offer will contest services on a no-win, no-fee basis. This can help to remove the financial risk in pursuing the claim, but it is important to be aware of the full ramifications of signing up to such an arrangement, and what this means in the event you lose or you win.
Another option is to take out legal expenses insurance to provide cover should you love and be liable for the defendant’s legal fees.
Legal costs will increase significantly if the case goes to court, which is another reason why mediation and alternative dispute resolution is encouraged.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.