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  • 28 Jun 2023

    Everything you need to know about contesting a will

    Disputes around inheritance and disagreements with the contents of a will is often referred to as ‘contentious probate’ in the legal world. 

    A person’s will should reflect their true wishes, but if you feel that a loved ones will has not been created properly, may have been forged, treats you unfairly, or if you think the person has been pressurised or not understood the contents of the will, then you have the option to contest the will. 

    If you are considering contesting a will, we recommend that you seek specialist legal advice. There are strict rules and time limits around making a claim and the process can be stressful, but an experienced solicitor can help to guide you through the process, work towards the best possible outcome for you, and maximise your chances of your claim being successful.

    Why would someone contest a will?

    If you truly believe that the person’s will does not properly reflect the deceased’s wishes or you are concerned about the way in which the will was created, you may choose to contest the will. A legal advisor can help you to establish whether parts or all of the will may be invalid and assist you in making a claim. 

    A will can be invalid for several reasons:

    • Want of due execution
    • Want of knowledge and approval
    • Undue influence
    • Fraudulent calumny
    • Fraud or forgery
    • Lack of testamentary capacity

    Alternatively, you may believe there to be a mistake in the will as a result of a clerical error or a failure to understand the deceased’s instructions. If this is the case and it means the deceased’s intention are not carried out correctly, you may be able to claim under section 20 of the Administration of Justice Act 1982 for rectification of the will.

    On the other hand, if the will is valid but you feel left out, treated unfairly or not been provided for properly by your loved ones will, you could make a claim of reasonable financial provision under the Inheritance Act 1975.

    Grounds for contesting a will

    There are several ways in which the validity of a will can be questioned.

    Has the will been properly executed?

    The signing of wills is governed by a strict set of rules which mean that occasionally, the person making the will, and their witnesses, can get it wrong. Clerical errors make the will invalid as poor drafting can lead to the deceased’s wishes being unclear and thus unable to be carried out. In this instance you can bring a claim of professional negligence against the will writers.

    Has the will been altered or forged?

    There could be suspicion that the will has been tempered with or has been created fraudulently. An example of this may be that the signature is noticeably different from the person’s who is supposed to have made it.

    Was the person under pressure to make the will?

    Sometimes vulnerable people are coerced into making a will or including terms they don’t necessarily agree with. The courts understand that this can happen and a case pertaining to this is known as undue influence.

    Did the person have the mental capacity to make a will?

    In order to be classed as having the mental capacity to make a will, a person must understand the consequences of their will and know the contents of the estate that they leave behind. If a person has an illness preventing them from thinking rationally, it could be argued that they have what’s known as lack of testamentary capacity.

    Did the person know of and approve the contents of the will?

    Any suspicions around how the will was made casts doubt over the validity of the will, and whether the court would find that the deceased knew and approved the contents of it. One example of this is if a major beneficiary of the will had a big part in arranging or writing the will themselves.

    Who can challenge a will?

    In short, an individual with vested interest in the will at questions. For example, they could be a spouse, child, cohabitee, or a person mentioned in the will or a previous will.

    The process of contesting a will

    If you qualify, you have grounds to contest the will and should seek legal advice. You will need to submit a claim before probate is granted.

    Submitting a claim

    Once your solicitor has looked at your case and believes that you may have a claim, the next step is to prepare the formal claim to submit to the Probate Registry office. This is also known as a caveat. 

    Once this has been done, probate cannot be issues meaning a halt in the distribution of the estate of the deceased.

    Resolving the dispute

    Disputes, in an ideal world, should try to be resolved before they go to court. Processes such as mediation or other forms of dispute resolution are the way to do this. However, it isn’t always possible and if the parties involved cannot come to an agreement, then the claim will proceed to court. 

    One thing parties should bear in mind when deciding to go to court over the matter, is that the length of time and amount of costs involved in the case is hard to predict and could end up being more than expected.

    Limits for contesting a will

    Seeking legal advice as soon as possible after deciding you want to contest it is essential due to the potential of a time limit applying to your claim. With each case being different, knowing where you stand with making a claim could be crucial to a successful outcome.

    • If you wish to dispute the wills validity, there is legally no strict time limit to do so. However, it’s important to still act quickly as it can be a lot harder to contest if the estate of the deceased has already been distributed.
    • If you wish to bring a claim under the Inheritance Act, you have just 6 months from the date of the grant of probate to issue your claim.
    • If you wish to bring a claim for rectification, you also have 6 months to submit a claim at court.

    In some cases, there are ways around the 6 months rule, and we can advise on whether this is possible.

    Costs of contesting a will

    Litigation can be expensive, and many people worry about the cost associated with contesting a will. 

    Each case is different, and this can impact the amount of work involved, the time it takes, and if there are any complications along the way, all of which affect the total cost. 

    We recognise that this can make people unsure of what to do, which is why we advise seeking legal advice early so we can be honest and open with you about the strength of your claim. 

    The responsibility of paying costs after a claim is a decision made by the court, but the general rule is that the losing party is ordered to pay the winning parties’ costs. 

    We have a good success rate in helping our clients to resolve the dispute through means other than the courts, leaving with terms that reflect the merits of the case against the costs risks and stress of litigation.

    How long does contesting a will take?

    The length of time contesting a will takes can depend entirely on the specifics of an individual case. We can give an estimated timeframe for your case after receiving details of your claim. 

    The length of time the claim can take is dependent on multiple factors:

    We will try our best to provide you with the best estimate of timescales at each stage of your claim.

    Can a will be contested after probate?

    There are strict deadlines in place for contesting a will, and although it is possible to contest after probate, it is much more difficult. It also could increase the amount of time it takes as well as potentially making the whole thing cost more. 

    It is of particular importance that you seek expert legal advice in the situation to get the best possible outcome for you.

    Contesting a will based on mental capacity

    When writing a will, the person must be considered to have ‘testamentary capacity’. This means that they must:

    • Be of sound mind when they make and sign their will
    • Understand exactly the extent of their estate and the items listed
    • Understand who they are choosing to leave items to and who receives nothing

    If the will writer did not have these things, then the will becomes invalid. This legally is referred to as ‘lack of testamentary capacity’ and can be the basis for contesting a will.

    A common concern is people making a will who suffer with Alzheimer’s disease or dementia. However, this doesn’t automatically make the will invalid. It all depends on whether the person is deemed to have testamentary capacity and meets the criteria listed above. 

    The courts recognise that these types of illnesses can have interval periods and that an individual can have episodes where there is a lack of capacity and times where everything is normal. 

    If you have concerns around a loved one’s capacity to make a will, it’s important to seek legal advice from someone who understands the process. It is vital that certain steps are carried out during the making of a will and if necessary, the solicitor can seek a doctors opinion at that time. Following the steps effectively at an early stage can help to reduce any risk of disputes later down the line.

    Can wills be contested on behalf of someone else?

    If you are wanting to contest a will on someone else’s behalf, then it’s advisable to seek legal advice as this can be a grey area. It all depends on the specific circumstances of each individual case.

    Can an executor contest a will?

    If you are a named executor, then you are in a position to contest the will. 

    However, if this was something you were looking to do, then you are most likely to have to give up your role as an executor. This is because an executors role is to distribute the estate following what is written in a will, so therefore if you are contesting the contents of the will, you will not want to complete that role. This causes what is known as a conflict of interest.

    Do I need to involve a court for contesting a will?

    In short, no. 

    Issuing court proceedings to contest a will or making a claim against an estate as litigation in court should be last resort. Our team are experienced in alternative dispute resolution and will advise you about how to solve the issue with going to court. 

    Many disputes around wills are resolved through methods like mediation and this can often be effective in reaching an agreement between parties without involving the courts. 

    Naturally, these methods don’t work for all and should the parties not be able to reach an agreement, issuing court proceedings would be the next step to consider.

    Are handwritten wills valid?

    Legally a will does not have to be prepared by a solicitor. However, making a will without legal advice has lots of risks attached to it and for the will to be valid, there are certain legal requirements that have to be met. 

    One requirement is that there must be two or more witnesses present at the same time at the signing of the will. If this is not carried out in the correct way, then the will could be deemed invalid. 

    With a handwritten will, there is increased risk that the legal requirements have not been complied with. Additionally, the situation lends itself to a testator being influenced, or not properly consulted regarding the contents of their will. 

    If the will then omits someone who would have been expected to benefit, or if the will, doesn’t match the previous wishes of the testator, then it could be that the decision not to instruct a solicitor was simply to avoid too many questions being asked. 

    If there are concerns about the validity of a will then seeking legal advice is the best course of action. There may be steps which can be taken to delay the administration of the estate to ensure the assets left in the will are not distributed. This allows time for any investigations to be carried out such as looking into how the will was made and time to speak to the witnesses of the document.  

     

    If you need any further information about contesting a will, or want to speak to someone about your claim, please contact one of our team today.

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