Contesting a Will can be a lengthy, expensive and complicated procedure. However with the rise of do it yourself Wills mistakes can be made. There is a set procedure for when you feel like you need to contest a Will.
The length of time a dispute takes to settle varies from case to case and how cooperative the parties are.
Raising a claim
Mostly a claim will be raised by one of the following people –
- A beneficiary of the Will
- An individual or organisation that was promised an inheritance.
- An individual or organisation that has been disinherited.
- A third party affected by the present or previous Will
- An individual who is related to or a dependent of the deceased.
Reasons to contest a Will
There are several reasons why you may want to contest a Will. You may believe the Will is invalid due to the points below.
- That the deceased did not have the full mental capacity to make their Will and the decisions involved with this. Sometimes due to illness such as dementia or Alzheimer’s disease the Testator would not understand the consequences of the decisions they are making. For a Will to be valid they must understand how they are deciding to split their assets and to who these are going to. They must also understand the value of these assets.
- The Will wasn’t executed correctly. For a Will to be properly executed it must be in writing. It must be signed by the person making the Will, known as the Testator, and also witnessed by two witnesses, who must also sign. The solicitor overseeing the Will should make sure that it is executed correctly.
- You may believe that the Testator was coerced by an outside influence into making their decisions. This is called Undue Influence and is grounds for raising a dispute with the Will. It is vital that all decisions are that of the Testator.
- You may believe that the Will was forged.
You may also contest the Will under the Inheritance (Provisions for Family & Dependents) Act 1975. This act is for family members such as spouses (or ex spouses where they have not entered into a new partnership) children or stepchildren of the deceased, or any other dependents, where they believe that ‘reasonable financial provisions’ have not been made for them in the Will.
Consulting a professional
If you believe that you have a case for contesting a Will then you must consult with a solicitor as soon as possible. Disputes need to be raised within six months from the date of the grant of probate. You should discuss your concerns with your legal team and they will advise you on the best course of action. They should also tell you if they do not think that you have a valid case.
If the Grant of Probate has not already been made by the Probate Registry then your solicitor should enter a caveat immediately. This will halt a grant of probate being issued whilst there is a dispute raised.
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 confirms that they are able to access their funds, deal with their property and collect and share out their possessions.
Your solicitor may need to access land registry documents or medical records. They will also request a Larke V Nugus statement from the deceased solicitor who oversaw the making of the Will. All of this information is crucial to them building your case.
A formal letter of claim is then drafted. This letter details exactly why the Will is being contested and what the desired outcome is. This letter is sent to all of the opposing parties and the executors of the Will.
Your solicitor will try to settle the dispute out of court as this not only ensures the claim is settled as quickly as possible but it is the least costly option for all parties involved. Mediation will be offered in the hopes that a resolution can be agreed upon.
The length of time a dispute takes to settle varies from case to case and how cooperative the parties are. If a resolution cannot be found through mediation then the claim is taken to court. This can take upwards of a year and is the most expensive option. The final decision is then left for the Judge to decide, once all evidence has been submitted.