28 Jun 2023
28 Jun 2023
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 one's 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.
Should you hold genuine concerns that the will does not accurately mirror the true intentions of the deceased, or if there are doubts regarding the process of its creation, contesting the will could be an option worth considering. Consulting with a legal expert can aid in determining the validity of the entire will or specific portions of it, and they can offer support in pursuing a claim.
A will can be invalid for several reasons:
Alternatively, if you suspect that an error in the will, either due to a clerical mistake or a misunderstanding of the deceased's wishes, has led to their intentions not being fulfilled accurately, you might have grounds to seek a correction. In such instances, you could pursue a claim under section 20 of the Administration of Justice Act 1982 to have the will rectified.
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.
There are several ways in which the validity of a will can be questioned.
The process of executing wills is subject to a rigorous framework of regulations, which sometimes results in errors by the individual creating the will and their witnesses. Mistakes in documentation can render the will void, as imprecise wording can obscure the intentions of the deceased, making it impossible to fulfil their final wishes. Under such circumstances, it's possible to file a claim for professional negligence against the individuals responsible for drafting the will.
There could be suspicion that the will has been tampered with or has been created fraudulently. An example of this may be that the signature is noticeably different from the person who is supposed to have made it.
At times, individuals in vulnerable positions may be pressured into drafting a will or incorporating provisions that don't align with their true intentions. The legal system recognises that such scenarios can occur and refers to these situations as cases of undue influence.
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.
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.
In short, an individual with a vested interest in the will in question. For example, they could be a spouse, child, cohabitee, or a person mentioned in the will or a previous 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.
After your solicitor reviews your case and concludes that you might have a valid claim, the subsequent action involves drafting the official claim to be presented to the Probate Registry office, commonly referred to as a caveat.
Following this submission, the issuance of probate is paused, effectively stopping the distribution of the deceased's estate.
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.
Parties contemplating taking their dispute to court should consider that the duration and financial implications of the case are unpredictable and may exceed initial expectations.
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.
In some cases, there are ways around the 6 months rule, and we can advise on whether this is possible.
The prospect of litigation can often bring with it concerns over financial burden, especially when it comes to challenging a will.
The uniqueness of each case means that various factors, including the amount of work required, the duration of the process, and the presence of any unforeseen issues, can significantly influence the overall expenses involved.
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've been highly successful in assisting our clients to settle disputes outside of court, ensuring that the resolution reflects the case's strengths while considering the costs, risks, and stress associated with litigation.
The duration of a will contest varies greatly and depends on the unique details of each case. Once we have the particulars of your claim, we can provide you with an estimated timeline.
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.
Strict deadlines govern the process of challenging a will, and while it remains feasible to contest a will post-probate, this route is notably more challenging. This approach may extend the duration of the process and could also escalate the overall costs involved.
Given these complexities, it is crucial to consult with a legal expert. Doing so ensures that you receive tailored advice aimed at securing the most favourable outcome in your circumstances.
When writing a will, the person must be considered to have ‘testamentary capacity’. This means that they must:
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 from 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 when everything is normal.
If you're worried about a loved one's ability to create a will, getting legal guidance from a professional familiar with the procedure is crucial. Ensuring specific procedures are followed when drafting a will is essential, and if needed, a solicitor can request a medical evaluation at the appropriate time. Taking the right actions promptly can minimise the chances of conflicts arising in the future.
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.
If you are a named executor, then you are in a position to contest the will.
If contesting the contents of a will is something you're considering, it's important to understand that doing so would likely require you to relinquish your duties as an executor. An executor's primary responsibility is to distribute the deceased's estate according to the terms outlined in the will. Therefore, challenging the will's provisions inherently places you in opposition to these duties, creating a situation commonly referred to as a conflict of interest.
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.
It is not mandatory for a will to be drafted by a lawyer, yet opting to create a will without professional legal guidance can be fraught with potential pitfalls. To ensure the will is legally recognised, specific criteria need to be fulfilled.
Among these criteria is the stipulation that at least two witnesses must simultaneously observe the signing of the will. Failure to adhere to this protocol correctly may lead to the will being considered null and void.
With a handwritten will, there is an 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 doubts arise regarding the legitimacy of a will, it is advisable to consult with a legal professional. There are measures that can be implemented to postpone the management of the estate, preventing the premature distribution of the assets detailed in the will. This pause provides an opportunity to conduct thorough investigations, including examining the process through which the will was created and consulting with individuals who witnessed the signing of the document.
