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A Step-By-Step Guide To Contesting a Will
What Grounds Do You Need to Contest a Will?
When a challenge is made regarding the validity of a will, it can lead to an estate being left in limbo. In this situation, it is crucial to obtain legal advice as soon as possible, not only to allow the administration of the estate to proceed, but also to preserve the assets of the estate for the benefit of all the beneficiaries.
The validity of a will may be contested in the following circumstances:
Lack of Capacity
A person making a will must have what is known as testamentary capacity, with the case of Banks v Goodfellow (1870) setting out the test for capacity to make a will.
In order to validly execute a will, a testator, i.e. the person making a will, must:
- Understand the nature of making a will and its effect
- 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
- Have no disorder of the mind that affects their sense of right or prevents the exercise of their natural faculties in disposing of the property by a will
The above test is a matter of interpretation, and where a person has a condition such as dementia or Alzheimer’s disease, this will not always mean that they are unable to meet the above criteria. However, such conditions often form the basis of successful challenges to the validity of wills.
As such, we would strongly advise that anyone with a diagnosis of dementia or Alzheimer’s, or any other condition that may impair their ability to provide instructions for the distribution of their estate, should make their will with the assistance of a solicitor. Our wills, trusts and estate planning team would be able to assist with this.
A testator may be able to say who they want their assets to go to, but not be able to recognise the significance of such a gift in the context of the value of their estate. For example, a person may give a gift of £20,000 to a friend and the rest to their children, without recognising that their estate is only worth £25,000 and that by making this gift, they are giving away 80% of its value.
Alternatively, a testator may have forgotten to include certain friends or family members in their will, or forgotten to include a reference to something they had verbally promised to someone. For more information on these subjects, visit our Inheritance Act Disputes (Left Out of a Will) and Promise Not Honoured in a Will pages.
Where there is suspicion over the role another person has played in a testator putting a will in place, its validity may be challenged. An older person or somebody considered vulnerable are most likely to be at risk of undue influence.
Examples of where suspicions may arise include:
- the deceased’s final will differs significantly from previous wills;
- a person who may expect to inherit, such as a son or daughter, has not been included in a will, or has received a reduced share of the deceased’s estate;
- a person unknown to the deceased’s family receives a large interest in the deceased’s estate.
It is also not uncommon to find that a testator’s instructions in preparing a will have been affected due to someone exerting dominance over them during their lifetime, or isolating them from friends and family.
Lack of Knowledge and Approval
A testator may sign a will without understanding some or all of its contents; for example, they may be capable of making a basic will, but would not understand a more complex will that incorporates a trust.
In these cases, a will could be challenged on the basis that the testator lacked knowledge of the contents, or was unable to provide informed approval of the document. Alternatively, the testator may not have read the contents of the will before signing, or it may not have been translated to them accurately if it was not written in their native language.
Forged or Fraudulent Wills
Occasionally, a will may appear to contain the last wishes of the testator, but questions arise over the circumstances surrounding the creation of the document that suggests it may have been signed or altered by an impostor.
In such cases, the court will consider the will to be valid until evidence can prove otherwise. As such, those bringing a claim will require not only legal advice, but also expert evidence from a calligrapher or a handwriting analysis expert.
Our Will Disputes Team
Is there a register for wills I can search?
There is currently no national register for wills, although, some law firms do sign up to voluntary databases, and 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 to check this. In this way, you can obtain a copy of the Grant of Representation and, if available, a will for the deceased.
Who can contest a will?
Wills can be contested by:
- any individual who was financially dependent upon the deceased;
- a beneficiary under an earlier will or under the intestacy rules;
- anyone who was made a promise by the deceased and relied on it to their detriment.
This means that family members can also contest a will, if it turns out that the matter cannot be resolved informally.
How do I challenge a will?
You will need to establish the grounds on which you seek to challenge the will, as the information required varies depending on the type of claim you wish to bring.
For example, in cases where it is claimed that the testator lacked capacity or was subject to undue influence, it may be necessary to apply to the deceased’s solicitor to ask for details of the circumstances under which they prepared the will.
Other documents, such as medical records or care records, may also assist in building a picture of the circumstances surrounding the preparation of the will. It is best to seek legal advice to find out what kind of evidence you will need to build your case.
Will I need to go to court?
If the matter cannot be settled prior to a final hearing, then you may need to attend court. However, the vast majority of claims are settled before a final hearing is required, which is why it is advisable to contact a solicitor to help resolve the case as soon as possible.
Will I be liable for costs?
As a rule, costs associated with a will dispute are incurred at the discretion of the court, and the losing party may be ordered to pay the winning party’s costs.
A common misconception is that the costs involved in inheritance claims automatically come out of the estate, but, in reality, this only happens when the testator can be proven to be the cause of the litigation, or if the circumstances of the case meant that an investigation into the will was essential.
As such, each party in the dispute should generally consider themselves responsible for their own costs, and potentially the other party’s costs if they lose the court case. If the two sides choose to settle the dispute between themselves, they can instead come to an agreement about who should settle the debt.
Is there a time limit for contesting a will?
Generally speaking, a claim by a beneficiary against a will must be brought within 12 years of the death of the testator. The main exception to this is in cases of fraud, where no time limit applies.
Ideally, you should look to put forward your claim before a Grant of Probate is issued, as this will help to ensure that none of the assets of the estate are distributed until the dispute has been resolved. Once probate has been issued, the time limit for bringing a claim is generally six months.
Because a will does not take effect until a testator has died, no claims can be made to contest the will while the person is still alive, even if concerns about the document arise before then.
Can a will be challenged after probate?
It is still possible to challenge a will after a Grant of Probate has been issued, though, in most cases, there will be a six-month limit on bringing a case from the date probate was issued.
It is also worth noting that challenging a will after the assets of the estate have already started being distributed can be a difficult and legally fraught process, which is why it is advisable to seek legal advice as soon as possible to determine the best course of action.