A Complete Guide to Contesting a Will

A Complete Guide to Contesting a Will

Although a will is meant to clearly outline how a person’s estate will be distributed after their death, disputes over its contents or validity can arise, leading to a situation where it may need to be challenged. This article provides a comprehensive guide to contesting a will, including valid grounds for challenge, who can contest a will, and the process involved.

What does it mean to contest a will?

Contesting a will refers to the legal process of challenging the validity or fairness of a will after the testator (the person who made the will) has died. A will can be contested for various reasons, including concerns about how it was drafted, claims that it does not reflect the testator’s true intentions, or assertions that certain individuals have been unfairly excluded or inadequately provided for.

Who can contest a will?

Not everyone has the legal standing to contest a will. The following individuals may challenge a will:

• Beneficiaries named in the will who feel they have not received what they were promised or expected.
• Beneficiaries under a previous will if they believe the most recent will was created improperly or under undue influence.
• Family members, such as spouses, civil partners, children, or dependents, who believe they have not been adequately provided for under the Inheritance (Provision for Family and Dependants) Act 1975.
• Executors or administrators who are responsible for the estate’s distribution and believe there are issues with the will’s validity.

Grounds for contesting a will

A will cannot be contested simply because someone does not agree with its terms; the law requires valid legal grounds before a challenge can be pursued. The key grounds include:

1. Lack of testamentary capacity

For a will to be valid, the testator must have had testamentary capacity when it was created. This means that they must:

• Understand the nature and consequences of making a will.
• Understand the extent of their estate (assets and debts).
• Understand who might reasonably expect to inherit (e.g., family members or dependents).
• Be free from any mental illness or condition (e.g., dementia) that would impair their ability to make rational decisions about their estate.

If there is evidence that the testator lacked mental capacity, such as medical records showing they suffered from a mental disorder, the will can be contested on these grounds.

2. Undue influence or coercion

If someone exerted undue influence or pressure on the testator when drafting the will, it could be challenged. Undue influence occurs when the testator is coerced into making decisions they would not have made freely. Evidence of manipulation or intimidation by someone close to the testator, such as a family member, caregiver, or solicitor, could be grounds for contesting the will.

Proving undue influence can be difficult, as it often occurs behind closed doors. However, witness testimonies, medical reports, and patterns of behaviour (such as isolating the testator) may provide the necessary evidence.

3. Lack of proper execution

Under the Wills Act 1837, for a will to be legally valid, it must meet certain formal requirements:

• The will must be in writing.
• It must be signed by the testator (or by someone at their direction if they are unable to sign themselves).
• The signature must be made or acknowledged in the presence of two witnesses.
• The witnesses must sign the will in the presence of the testator.

If any of these conditions are not met, the will can be contested for lack of proper execution.

4. Fraud or forgery

A will can be challenged if there is evidence that it was forged or that someone committed fraud in the process of its creation. This might involve someone creating a fake will, altering parts of an existing will, or misleading the testator about the contents of the document they were signing. Handwriting experts and other forensic specialists may be used to detect fraud or forgery.

5. Rectification claims

If a will contains a clerical error or fails to reflect the testator’s instructions due to a drafting mistake, it can be challenged through a rectification claim. This typically occurs when a solicitor or will writer makes an error in drafting the document. A court may rectify the will to correct the mistake and reflect the testator’s true intentions.

6. Failure to provide for family and dependents

Under the Inheritance (Provision for Family and Dependants) Act 1975, certain individuals can challenge a will if they believe they have not been adequately provided for. These individuals include:

• Spouses and civil partners
• Former spouses and civil partners (if they have not remarried)
• Children (including adult children)
• Anyone who depended financially on the deceased

In these cases, the court will assess whether the will makes reasonable financial provision for the claimant based on their relationship to the deceased and their financial needs.

Time limits for contesting a will

There are strict time limits for contesting a will:

• For inheritance claims under the 1975 Act: The time limit is 6 months from the date probate is granted.
• For fraud or forgery claims: There is no specific time limit, but claims should be brought as soon as possible.
• For claims based on lack of capacity, undue influence, or improper execution: It is best to contest the will before probate is granted, although it may still be possible afterward in some cases.

If you believe you have grounds to contest a will, it is crucial to seek legal advice as soon as possible to ensure that you do not miss the relevant deadlines.

The Process of contesting a will

Contesting a will involves several steps, which can vary depending on the nature of the challenge. The process generally includes the following stages:

1. Seek legal Advice

Before proceeding, it is essential to consult with a solicitor who specialises in wills and probate disputes. They can assess the strength of your case and advise you on the best course of action. At Judkins, our experienced solicitors can guide you through the process of contesting a will, ensuring your voice is heard and your rights are protected call us on 01992 500456 or email us at mail@judkins-solicitors.co.uk

2. Lodge a caveat

If you want to prevent the executor from obtaining probate while the dispute is being resolved, in certain circumstances  you can lodge a caveat with the Probate Registry. A caveat temporarily prevents probate from being granted, giving you time to gather evidence and pursue your claim but can be “warned off” which if successful can put you at risk on costs.  A caveat lasts for six months and can be renewed if necessary.

3. Pre-action protocol and mediation

The courts encourage disputing parties to follow a pre-action protocol to resolve the matter outside of court. This involves exchanging evidence, engaging in negotiations, and possibly attending mediation to reach a settlement. Many will disputes are resolved through mediation with no need for a court hearing.  Mediation can take place remotely with each side represented and a large number do reach a settlement with a massive saving on legal costs which would otherwise diminish the size of the estate being contested.

4. Court proceedings

If mediation fails, the case will proceed to court. Both parties will present their evidence, and the court will decide on the validity of the will or whether any amendments should be made. Court proceedings can be lengthy and costly, so it is always preferable to settle the matter outside of court if possible.

5. Enforcing the court’s decision

Once the court has made its decision, the executor will be responsible for distributing the estate according to the ruling. If the will is declared invalid, the estate may be distributed according to a previous valid will, or if no previous will exists, according to the rules of intestacy.

Contesting a will is a complex legal process that requires solid grounds and often involves sensitive family dynamics. Whether you are challenging a will based on lack of capacity, undue influence, improper execution, or unfair provision for dependents, it is crucial to act quickly and seek expert legal advice. If you believe you might have a case to contest a will, contact us today to schedule a consultation with our expert solicitors. We’ll guide you through the process, ensuring your case is pursued with the diligence it deserves.