When a loved one passes away, generally your first thought will not be the Will. However once things settle down, attention is turned to the estate of the deceased.
You may be surprised to find out that you have not been granted what you believe was promised to you or you may have questions surrounding the validity of the Will.
When contesting a Will, time is of the essence to ensure that the matter is resolved in a timely manner, with the least amount of upset and expense.
When contesting a Will, it may take many more months, or even years to settle the case. This will vary from case to case and will depend on a variety of factors.
Types of claims
There are two main types of claims –
- Claims under the Inheritance (Provision for Family & Dependents) Act 1975
- Claims against the validity of the Will.
Under the Inheritance (Provisions for Family & Dependants) Act 1975 the time limit to contest the Will stands at six months from the Grant of Probate.
Grant of Probate
A Grant of Probate is a legal document which confirms the executor of the Will has the authority to deal with the deceased assets. It allows them to access funds, deal with their property and also collect and share out their possessions.
In exceptional circumstances a claim can be made after six months but this application would need to be made to the court and it is at their discretion as to whether they accept it. You will need to explain why you have waited for a considerable amount of time before raising your dispute and it could hinder your chances of a successful outcome.
If you are claiming against the validity of the Will, technically there are no time limits although as with many legal processes time is of the essence. For example if you were to raise a dispute many years later then much of the evidence you require, such as medical records, could have been destroyed. Witnesses may also be harder to track down.
Validity of a Will
For a Will to be valid it must;
- Be in writing and signed by the Testator in front of at least two witnesses. These witnesses must also sign the document.
- The Testator must have full mental capacity and be aware of all of the decisions they are making and the consequences.
- They must have full knowledge of the value of their assets.
- They must not have undue influence when making these decisions. All decisions must be their own.
- The Will must not be forged.
Contesting the Will
When contesting a Will based on its validity, you must be able to prove your case. Your solicitor will have to access records, such as medical records or land registry documents. You may need to call expert witnesses and also the solicitor who drafted the original Will most likely will need to supply a Larke v Nugus statement.
Do remember that although these time limits are in place, when contesting a Will, it may take many more months, or even years to settle the case. This will vary from case to case and will depend on a variety of factors, such as whether it can be resolved out of court and how cooperative each party is.