When a member of your family, close friend or loved one passes away and you believe there is a discernible error within the last will and testament they have left behind, or that it has not been correctly implemented in some way, then you may have valid cause to legally contest the contents of their will in court.
The process of contesting a will is often complex, which makes expert legal advice essential to validate your situation before committing to formal legal proceedings. This comprehensive guide covers all aspects involved with contesting a will, and outlines the necessary steps that need to be taken to submit a successful claim.
What is a last will and testament?
A last will and testament allows a person to decide exactly what will happen to their money, property and possessions in the event of their death. It may also include care instructions for any children aged under 18. As a formal legal document, it must be witnessed and signed for it to be considered legally valid. The process of confirming the validity of a will is known as probate.
People can write their own will by themselves, though if it involves complex terms then it is always best to seek the advice of an experienced legal professional. A will must also be stored safely, whether at home, with a solicitor or a third-party company that offers storage of wills as part of their service.
In the event that a person does not submit a formal will to a solicitor then the law will then make an informed judgment on the administration of their estate, and decide which people or parties are due to inherit their money and assets. The legal term for this process is intestacy.
Can a will be contested?
Yes, although the claimant must have valid legal grounds to contest a last will and testament successfully. Grounds for appeal include the following:
- Lack of testamentary capacity – The person creating the terms of the will, known as the testator, must be of sound mind when they create and sign the document. They must understand the full extent of their estate and possessions and understand who they are choosing to include and exclude.
- Lack of due execution – The testator must sign their will in the presence of at least two formal witnesses who are present at the time of signing. Each witness must then also give a signed receipt that they have witnessed the signing of the will by the testator. If there is any evidence to suggest otherwise then a claim of lack of due execution may then be raised.
- Undue coercion – A claim may be raised if there is significant evidence to suggest that the testator has been manipulated into submitting unfair or invalid terms within their will. Due to the nature of this claim, the supporting evidence must be of a high standard in order to stand any chance of it being successful.
- Fraud – It’s possible to contest a will if the claimant has valid grounds to suggest that the will has been forged in any way. For instance, if a testator instructs another person to formalise the terms of their will, and then that person submits false terms to benefit themselves and forges the signature of the testator, then the will may be overturned and declared fraudulent.
For more information, read our guide: Can A Will Be Contested?
How to contest a will – a step-by-step guide
Contesting a will is a legal process that requires careful consideration and often involves complex legal procedures. Here’s a non-exhaustive list of some of the steps involved in contesting a will in England and Wales or making a claim under the Inheritance (Provision for Family and Dependants) Act 1975:
- Act quickly: If you are considering the option of contesting a will for whatever reason then you should seek legal advice as a matter of urgency to confirm whether you are able to submit a claim within the above time constraints. Contesting a will after probate has been granted is possible, though it is always preferable to raise a claim beforehand.
- Seek legal advice: Consult with an experienced solicitor who specialises in probate and estate disputes or “contentious probate.” They can provide you with legal guidance, assess the merits of your case, and help you understand your rights and options.
- Understand grounds for contesting: Discuss the reasons you believe the will should be contested with your solicitor. The most common grounds for contesting a will include lack of capacity, undue influence, fraud, forgery, ambiguity, and claims under the Inheritance (Provision for Family and Dependants) Act 1975.
- Enter a caveat: You or your solicitor can enter a “caveat” at the Probate Registry. A caveat is a formal notice that prevents a grant of probate from being issued until the dispute is resolved. The caveat lasts for six months (though it can be renewed where applicable), giving you time to investigate matters and contest the will. It may also prevent some estate assets from being distributed in the meantime.
- File a warning: If someone else has already applied for a grant of probate, you can file a “warning” or “appearance” to indicate your intention to contest the will. This notifies the court of your dispute and initiates the formal legal process.
- Gather evidence: Liaise with your solicitor regarding gathering all relevant documents, records, and evidence to support your claim. This might include medical records, correspondence, witness statements, and any other documents that strengthen your case.
- Attempt mediation: Before initiating formal legal proceedings, you may be required to participate in mediation or another alternative form of dispute resolution. This involves discussing the dispute with the interested parties in the presence of a neutral third party (the mediator) to try to reach a settlement.
- Issue court proceedings: If negotiations and preliminary steps or mediation do not lead to a resolution, you may need to issue court proceedings. This involves filing a formal claim and submitting all relevant evidence to the court. The court will set a timetable for the proceedings. Court proceedings are expensive and (no matter how good you think your case may be) risky, which is why it is always preferable to reach a mutual agreement outside of court wherever possible.
- Attend court hearings: You may need to attend court hearings to present your case. The court will consider the evidence from all parties involved and make a decision based on the evidence and the law.
- Reach a settlement: At any point during the legal proceedings, you and the other parties may decide to reach a settlement. This can involve altering the terms of the will or coming to a compromise that all parties find acceptable.
- Await the court’s decision: If the case proceeds to trial, the court will make a decision based on the evidence presented. The court’s decision will determine whether the will is set aside or upheld.
Contesting a will or making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 can be emotionally and financially draining, so we advise carefully weighing up your options and consulting with a solicitor throughout the process. Legal advice and representation are crucial to navigating the complexities of this process effectively.
How long do I have to contest a will?
In England and Wales, the time frame within which you can contest a will varies, and if a particular type of claim is being made, the time limit can be as little as six months from the grant of probate. The grant of probate is the legal process that confirms the validity of a will and gives the executor the authority to administer the estate.
However, there are exceptions, which include the following:
- Fraud: If you have evidence that the will was fraudulently created or that someone else has committed fraud in relation to the will, there is no strict time limit to contest it.
- Minor or Mentally Incapacitated Individuals: If the person contesting the will is a minor (under 18 years old) or lacks mental capacity, the time limit might not start until the individual reaches the age of 18 or regains mental capacity.
- Inheritance (Provision for Family and Dependants) Act 1975 Claims: If you’re making a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which allows certain family members and dependents to claim for reasonable financial provision from an estate, you have six months from the grant of probate to make the claim.
Please keep in mind these are only general guidelines. Legal matters involving wills can be complex and the specifics can change depending on the nature of the case, which is why it’s always worth speaking to an expert.
Suppose you’re considering contesting a will or making a claim under the Inheritance (Provision for Family and Dependants) Act 1975. In such a case, it is vitally important that you seek legal advice promptly to understand your specific circumstances and the applicable time limits. If you do not comply with any applicable time limit (by issuing Court proceedings or settling your claim), you may lose any right you may otherwise have to contest the will or make a claim under the 1975 Act.
What to do if a will is contested against
If a will you are seeking to uphold is contested, it means that someone is challenging the validity or terms of the will. This can be a complex and emotionally charged situation, as it often involves legal and family issues. Any dispute can be cripplingly expensive. There are five key steps to take if you find yourself in this situation:
- Consult a solicitor: If you are the beneficiary or executor of a contested will, it’s crucial to consult an experienced attorney who specialises in Estate disputes and contentious probate law. They can provide you with legal advice and guide you through the process.
- Gather evidence: Your solicitor will help you gather evidence to support the validity of the will. This might include witnesses who can testify about the testator’s mental capacity and intentions, as well as any documents that can demonstrate the proper execution of the will.
- Understand the grounds for contesting the will: Contesting a will generally requires legal grounds, such as lack of testamentary capacity (the person making the will was not of sound mind), undue influence, fraud, or improper execution. Your solicitor can help you understand the specific grounds being put forward by the contesting party and help you build a strong defence.
- Negotiation and mediation: In some cases, it might be possible to resolve the dispute through negotiation or mediation. This is generally significantly cheaper than going to court, so it can help avoid lengthy and costly court battles. Mediation and negotiation are just two of the several methods of resolving disputes by way of ADR (“Alternative Dispute Resolution”). Your solicitor can advise you on the best approach to take.
- Prepare for litigation: If a resolution cannot be reached through negotiation, mediation, or other type of ADR, you might have to prepare for litigation. This involves presenting your case in court, and your solicitors will guide you through the process. In the event that the case is taken to court and the will is declared invalid for whatever reason then the court may rule to discredit part of the will, or the entire will outright. They may then refer to an earlier, validated will if one exists. If there is no earlier will to refer to then the money, property and possessions of the deceased may be distributed under intestacy law.
Furthermore, there are some key points to consider when you’re faced with a claim against a will:
- Validity of the will: One of the main concerns in a will contest is whether the will is valid. Contesting parties might claim that the testator was not of sound mind when making the will or that there was fraud or undue influence involved.
- Executor’s responsibilities: As an executor, you have a legal duty to carry out the terms of the will. If the will is contested, you might worry about your responsibilities and the potential for personal liability.
- Emotional impact: Estate disputes and will contests can strain relationships and lead to emotional distress within families. Balancing legal matters with maintaining family ties can be challenging.
- Financial costs: Legal proceedings can be very expensive, and the costs can quickly add up during a will dispute. This can be a significant concern for beneficiaries or executors. As before, it is always preferable to reach an amicable agreement outside of court to avoid the potentially high cost of court fees.
- Lengthy process: Will contests can be time-consuming, often lasting for months or even years. This prolonged process can cause stress and uncertainty.
- Public exposure: Court proceedings are generally a matter of public record. Some individuals may be concerned about their personal and financial matters being exposed to public scrutiny.
Every situation is unique, and the best course of action will depend on the specific circumstances. It’s essential to work closely with qualified solicitors with significant experience dealing with this matter and preferably part of a team of specialists. They can provide tailored guidance based on your situation and the applicable law.
Do you want to contest a will?
Regardless of your situation, if you’re looking to contest a will or are dealing with a contested will, then we are here to help with friendly, expert legal support and advice. Please contact our team of contentious probate solicitors for further information or fill in the contact form below.