Contesting a Will Solicitors

If you have concerns about how a loved one's will was made, the contents not matching the deceased's intentions, or the document itself, it may be possible to challenge it. The expert solicitors at JMW can help you to contest a will, answer your questions about the process and help you to gather evidence to support your claim.

Whether you are a beneficiary, a trustee or a potential beneficiary who was unfairly left out of the will, we can provide support and advice, in certain cases under a no win, no fee agreement. Our probate specialists will evaluate your position, help you to decide whether challenging the will is the right step for you and support you at all stages of the process. If you suspect that the deceased lacked mental capacity when they made the will, that they were subject to undue influence, or that the legal formalities to make the will valid were not met, we can help. We are here to make the entire process run as smoothly and stress-free as possible for you during this difficult time.

If you are in need of support from a professional, understanding solicitor to assist with contesting a will, contact our dedicated team today by calling 0345 872 6666, or fill in our online enquiry form to request a call back.

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How JMW Can Help

JMW Solicitors has years of experience in contested probate claims and claims for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975. Our contentious probate team is made up of expert solicitors who are experienced at bringing and defending claims on behalf of individuals, families and professionals.

Our solicitors can provide advice when there are concerns surrounding:

The deceased’s mental capacity to make a will

Undue influence being put upon the deceased by someone else

The deceased's knowledge of and/or approval of the will

Evidence that the will has been forged or is fraudulent

The execution of the will

Whether those left behind have received reasonable financial provision

With a strong track record of success, members of our highly respected team have been rated in the prestigious Chambers and Legal 500 guides as leaders in this field, and are regularly invited to deliver seminars on legal matters regarding challenging a will.

Chambers has noted that we are equally adept in dealing with “both small everyday matters or complex transactions involving many legal areas”, and that “there is always an expert on hand to guide clients, whatever the issue”.

Meet Our Team of Will Disputes Solicitors

JMW’s team of specialist will solicitors has many years of experience providing our clients with expert legal advice on contesting wills. We offer expert legal advice and practical support founded on a track record of success and a thorough knowledge of how legal formalities, valid grounds, limitation periods and intestacy laws will affect your challenge.

Case Studies

JMW Solicitor’s successful early resolution at mediation of clients’ Contested Will case on grounds of invalidity

We successfully secured a settlement plus costs, at mediation. The settlement achieved will allow our clients to inherit monies from their grandma/great grandma as had always been discussed with her as well as provide security for their family in the future.

Successful settlement for client in respect of a challenge to a Will dispute

Head of JMW’s Will Disputes team, Alison Parry, has successfully resolved a dispute between siblings regarding their deceased parent’s estate. The claim was successfully resolved by way of settlement at mediation.

What Are the Grounds to Contest A Will?

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I'm Alison Perry. I'm a partner at JMW and Head of the Contentious Trusts and Probate team here. There are several grounds on which you could contest a will. These are lack of required testamentary capacity, lack of knowledge and approval of the contents of the will, undue influence.

A lack of the formalities required for will writing and also fraudulent calumny, which is where the testator's mind has been poisoned in order to leave his estate in a different manner than he would otherwise have done so. In order to make a will, you need what is known as testamentary capacity. It can be very difficult to show that there was undue influence in the creation of a will because you have to show that somebody was actually coerced into making it. In order to look at evidence in this field, we look at witnesses who may have known the deceased well, and we would also look to obtain medical accord to see whether there are any relevant entries in those notes that might indicate their vulnerability to that influence.

There are a number of people who may be able to claim for reasonable provision out of somebody's estate. This is a spouse or civil partner, a former spouse or civil partner as long as they've not remarried or formed another civil partnership, a child of the deceased, somebody who was treated as a child of the deceased, somebody who was immediately before the deceased death, maintained by the deceased by the holy partly and somebody who was living in the same household as the deceased as husband or wife or civil partners for at least two years before their death. Where it's a spouse or a civil partner.

The provision you might expect is what is reasonably required for your maintenance in all circumstances.

For anybody else you will see to claim, then the test is what is reasonably required for their maintenance.

Certain claims have a time limit of six months from the date of the grant of probates. It's always advisable to bring it as early as possible because there will be more evidence you can gather sooner to the event.

Where a claim concludes with a court hearing at trial, then usually the position is that the loser will be able to pay the winner's costs. The court however has ultimate discretion over who pays the cost and can make a different order if it feels the appropriate to do so. There are several ways in which you could resolve a dispute without going to court. The most common of these are negotiation between the parties and mediation. To contest a will, it's usually sensible to get a solicitor's advice from the outset. These claims can be quite complex and emotionally draining. And the solicitor will talk you through your concerns and be able to have very much firmly in mind what you want to achieve out of it.

When a person creates a will, they set out how their estate (property, possessions and cash) is to be distributed upon their death and who will be responsible for that process. When concerns arise regarding the circumstances in which a will was created, you may be able to challenge it.

You can only contest a will with the correct legal standing. There are several legal grounds you can rely on to challenge a will's validity, and there is limited scope to do so if none of the following apply:

Lack of testamentary capacity

For a will to be valid, the person who creates the will, known as the testator, needs to be of “sound mind, memory and understanding” when making the will. Any lack of mental capacity could mean that the document is invalid. The legal test is set out in the case of Banks v Goodfellow (1870) that states for a will to be valid, the testator must:

Understand the nature and effect of making a will;

Understand the extent of the property of which they are disposing;

Be able to comprehend and appreciate the claims to which they ought to give effect; and

Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.

When contesting a will on the basis that the testator lacked mental capacity, we will often write to the solicitors who drafted the will to get further information on the circumstances surrounding the drafting of the will, and obtain medical records and witness statements that may support this.

Lack of due execution

There are strict requirements set out in section 9 of the Wills Act 1837 that must apply for a will to be considered valid:

It is in writing, and signed by the testator, or by some other person in their presence and by their direction;

It appears that the testator intended by their signature to give effect to their will;

The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time; and

Each witness either attests or signs the will or acknowledges his signature in the presence of the testator.

It is best to work with a solicitor when making your will, as their legal expertise will ensure that the document is executed correctly. If a will is not validly executed, it is invalid and may be challenged.

Fraud or forgery

While this is very rare, you can legally contest a will if you believe that it has been created fraudulently or that it has been forged. This may mean that a signature has been forged or that new terms have been added, especially if the will was stored in an unsecured place. A fraud will can also occur if the testator instructs someone else to finalise the terms of their will, then that person submits false terms to benefit themselves.

Undue influence

You can contest the validity of a will if there is evidence suggesting that the testator was coerced into making the will. However, strong supporting evidence must be provided to prove this.

Lack of knowledge and approval

If the testator did not know or approve the contents of their will (despite being executed properly) then the will is invalid. This may arise if they have a disability or language difficulty that would prevent them from reading the document.

Poisoning of the mind

A will can also be contested if it can be proven that the testator’s mind was poisoned by false statements being made about someone who could have benefitted from the will otherwise and those statements were intended to have that person removed from the will.

Claims for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975

Certain classes of people are eligible to bring a claim under the Inheritance Act for reasonable financial provision. This includes spouses and former spouses, children, people treated as children, cohabitees and people who were financially dependent on the deceased.

What Happens if I Challenge the Will Successfully?

If you successfully challenge the will and it is declared invalid, the deceased person's estate will be distributed according to the most recent previous will that was valid. Alternatively, if there is no valid will, estate administration may proceed according to the intestacy rules. These provide strict instructions on who should inherit based on family relationships, and may not reflect the outcome you wish to achieve.

JMW's experienced contentious probate lawyers can advise you on whether or not a will is properly executed, the possible results of an inheritance dispute, and what the legal process will involve if you decide to proceed after considering all the circumstances.

Should I Seek Legal Advice When Contesting a Will?

Contesting a will is a specialist area of law, and it is important you seek legal advice from a solicitor experienced in this area. If you challenge a will without the correct legal grounds, you could face unnecessary legal costs without achieving the outcome you want. On the other hand, when disputes arise, a specialist lawyer may be able to help you to resolve the matter without the need for court intervention.

If you require legal assistance to dispute the validity of a will of someone who has passed away, be sure to seek specialist advice from one of our contentious probate solicitors. Contact us today to speak to one of our experts who can deal with your case and help produce quick results to avoid any delays around the distribution of the estate.

FAQs About Contesting a Will

What is the process to contest a will?: The process to challenge a will depends on whether the Probate Registry has granted the executor probate or not. If not, you can enter a caveat that prevents probate from being issued until the matter is resolved. However, if the estate administration process has already begun, it may be necessary to move more quickly towards legal action.
For more information, check out our step-by-step guide to contesting a will.

How much does it cost to contest a will?: The cost to contest a will varies depending on the severity and complexity of the issue, and whether or not you need to go to court.
If the dispute needs to be resolved in court, a judge will decide how these costs are to be paid, and usually, the loser pays the winner’s costs and legal fees.
We are able to work with you towards a number of funding arrangements, including “no win, no fee” and deferred fees. We will do all we can to ensure you have the right funding in place to pursue your matter.

Is there a register where I can search for a will?: Currently, there’s no compulsory national register for wills. However, some law firms do sign up to voluntary databases, so wills can be traced through this.
When a person passes away and you think that a Grant of Representation has been applied for, you can search the government’s Find a Will or Probate Document database and check this. This way, you can obtain a copy of the Grant of Representation and a will for the deceased if available.

Who can contest a will?: A will can be contested by a beneficiary under an earlier will (written before this one) or under the intestacy rules. It may also be possible to challenge the distribution of the estate if you are a spouse, a former spouse, child, person treated as a child, a person financially dependent on the deceased and, in some cases, a cohabitee, or if you were made a promise by the deceased and relied on the fulfilment of it to your detriment.
Our team can advise you of whether you are in a position to challenge a will based on a discussion of your circumstances.

Will I need to start court proceedings to contest a will?: If the issue cannot be resolved by negotiation (including mediation), then the only way to resolve a matter is through the court process. However, the vast majority of claims relating to contesting a will are resolved before a final hearing is needed, which is why it’s advised to contact a solicitor to help resolve the problem as soon as possible.

Will I be liable for costs?: Typically, if the matter goes to trial, the unsuccessful party will be ordered to pay the winning party’s costs.
A common misconception is that the costs of resolving an inheritance claim will automatically be deducted from the estate, but this is rare and the usual rule of “loser pays the winner’s costs” generally applies.
If both parties decide to settle the dispute between themselves, they can instead agree on who should settle the costs and they can each agree that the costs could come from the estate.

Is there a time limit for contesting a will?: There is a time limit of six months from the date of the Grant of Probate to bring a claim under the Inheritance Act 1975 for reasonable financial provision.
There is no time limit to contest a will on the grounds of lack of mental capacity, lack of knowledge and approval of the will, fraud and forgery and lack of proper execution. However claims should always be brought quickly, ideally before the estate has been administered, and a claim may be struck out if there has been an unreasonable delay in bringing a claim.
Because a will does not take effect until the testator has died, it’s impossible to claim against a will whilst the person is still alive, even if concerns about the document have been raised before then. It can be possible to claim during a testator’s lifetime if they have reneged on a promise made that you have relied on to your detriment.

Can a will be challenged after probate?: Other than claims under the Inheritance Act 1975, which must be brought within six months of the date of the Grant of Probate, there is no legal time limit and it is possible to bring a claim after a grant of probate has been issued.
It’s important to note that challenging the validity of a will after the assets of the estate have already begun to be distributed can be a difficult challenge. It is advised to seek legal advice as soon as possible to determine the best course of action.

Is an Inheritance Act claim the same as contesting a will?: Making an Inheritance Act claim for financial provision is not the same as contesting a will, because the outcome does not involve the will being overturned or declared invalid. However, it is a way to alter how the estate is distributed, and receive a portion of the deceased's estate to cover your financial needs. This may affect the overall value of the estate and the court has powers to manage how the existing beneficiaries inherit if it grants financial provision to someone who was not named in the document.

Talk to Us

To speak to a member of our team who can provide expert legal guidance in relation to contesting the validity of a will, get in touch with us today. You can contact us by calling 0345 872 6666, or request a call back by filling in our online enquiry form.

Contesting a Will Solicitors