There are many reasons why someone might want to challenge a will. While there are limited legal justifications for overturning a will and hurdles to overcome to ensure your challenge is successful, issuing a challenge might be your only available course of action if you cannot resolve a concern over a will by speaking to the executor or by pursuing mediation.

Because there are several stages in the probate process, there are different ways to challenge a will at different times. Where possible, it is best to issue a caveat before a grant of probate is issued if you have any concerns about the will. This will then prevent a grant of probate being issued to the will’s executor for a six month period, which offers you the chance to discuss your issues with the executor or to resolve the dispute.

However, challenging a will after probate is granted is certainly possible if you have missed the deadline for issuing a caveat. Because this involves taking legal action, which can be difficult, expensive and time consuming, you should be aware of the risks involved and realistically assess your chances of success before you pursue this course of action. Here, the probate experts at JMW will explain the types of consequences you might face for challenging a will after probate is granted, the legal justifications for doing so, and the types of evidence you might need in order to prove your case.

How can I challenge a will if probate has been granted?

An executor to an estate needs a grant of probate in order to proceed with their duties executing the will and distributing the assets. Applying for the grant of probate is one of the first steps an executor will take after their loved one has died, so it is not always easy to issue a caveat in time. However, the process of granting probate usually takes at least eight weeks, and so if you are able to issue your caveat during this time, you may be able to halt the process in order to resolve your issues. While a caveat lasts for six months, you can renew it at the end of this period if issues have not been resolved, so this is the best way to start to a challenge to a will wherever possible. However, it’s important that you only enter a caveat in the right circumstances or there can be serious consequences so it is always worth taking legal advice at an early stage.

Once probate has been granted and the executor has begun to manage the estate, there remains a number of legal grounds on which you can challenge the will. For example, if you have evidence to suggest that the deceased did not have testamentary capacity when the will was made, that they were unaware of the contents of the will, or that they may have been coerced into changing aspects of their will, these are all legal grounds to issue a challenge. 

If there are questions about the legality of the will, you may also consider contesting it. This may be because the will does not meet legal standards, rendering it invalid - it must be signed in the presence of two witnesses, who must also sign the document, and neither witness can be left a gift within the will. This also applies if there is evidence to suggest that the will may have been forged or tampered with.

What evidence can I use to challenge a will?

You can provide many different types of evidence to support a challenge. Evidence might include statements from witnesses affirming that the contents of the will do not match the deceased’s stated intentions, or forensic evidence attesting to forged handwriting or signatures, but it is often very difficult to achieve this level of proof, and some grounds are more difficult to prove than others. For this reason, it is vital to speak to an experienced contentious probate solicitor about your circumstances before deciding to pursue a claim, so that you can realistically estimate your chances of success.

Read more about what happens when a will is contested.