How to contest a Will?

Family walking in the meadows with the sun setting

When a family member or loved one passes away it is a very testing and emotional time for everyone involved. You may believe that there is a problem with the Will and are not sure how you go about rectifying this. 

Here we give you a step by step guide as to what happens when you decide to contest a Will

Once you have decided if you think you have grounds to contest the Will, the next step should be to consult with a Solicitor.

Who can contest a Will

To be able to contest a Will you must be an Interested Party. This means that you should be 

  1. A spouse or ex spouse who has not entered into a new partnership. 
  2. A dependant – Child or Stepchild. 
  3. An individual who was financially dependant on the deceased before their death
  4. An individual who was promised an inheritance from the deceased. 
  5. An individual who was named on a previous Will. 

You must then be clear on why you are contesting the Will. 

Reasons to contest a Will

There are two main categories that you can raise a dispute within. 

  1. You believe the Will to be invalid
  2. You believe that adequate financial provisions have not been made for you. 

Let’s break these categories down – 

For a Will be valid it must – 

  1. Be executed correctly. This means that it must be in writing. It must be signed by the Testator in front of two witnesses. These witnesses must also attest and sign the Will. 
  2. The Testator must make all of the decisions themselves. There must not be any undue influence from outside sources. 
  3. The Testator must have the mental capacity to make these decisions and be able to understand the consequences of these decisions. 
  4. The Testator must understand the true value of their estate. 
  5. The Will must obviously not be forged. 

If you believe any of these have been breached then you may contest the Will based on its validity. 

If you believe that adequate financial provisions have not been made for you then you would contest the Will under the Inheritance (Financial provisions from Family & Dependants) Act 1975. The court will then decide if they believe that fair provisions have been made and if not they will look at the estate of the deceased and your current financial situation. They will then decide if further action needs to be taken. 

No contest clause

It is wise to check to see if the Will has a No Contest Clause within it. This clause will state that any beneficiary that contests the Will forfeits their entire inheritance. 

Who to talk to about raising a claim

Once you have decided if you think you have grounds to contest the Will, the next step should be to consult with a Solicitor.

Many practices offer a free thirty minute appointment for you to talk through your concerns. Your Solicitor will be able to tell you if they think you have a solid case.

It is important that any disputes are raised within six months from the Grant of Probate being issued so time is of the essence. Trying to contest a Will after this time period will impact your chances of a successful outcome. 

A Grant of Probate

A Grant of Probate is a legal document which confirms that the executor of the Will has the authority to deal with the deceased estate. It allows them to access funds, deal with property and collect and share out their possessions. 

Gathering evidence and the steps to take to give you time to gather the evidence

After speaking to your solicitor, if you decide to go ahead they will enter a caveat with the Probate Registry. This will stop the Grant of Probate being issued whilst there is an ongoing dispute with the Will. This caveat is valid for six months but can be extended where the case is still ongoing. 

Where the Wills validity is being brought into question a Larke V Nugus statement from the solicitor who oversaw the drafting of the Will may be requested.

Other experts may also be brought in, for example if you are contesting the Will based on the Testator’s mental capacity, a medical professional will be needed. If you believe the Will to be forged a handwriting expert would be needed. Your solicitor may also need to access medical records and land registry documents. 

Letter of claim

A formal Letter of Claim is then sent to all of the parties involved. This letter gives the exact details as to why the Will is being contested and what the desired outcome is. The executors of the Will also receive copies of this. 

Settlements

Mediation will be offered to try to settle the claim out of court. Not only does this speed the process up but it will keep the costs down. All parties are expected to pay their own fees during this process. However a judge may order the losing party to cover the expenses for the winning party. 

Whether the case can be settled out of court all depends on how cooperative each party is in coming to a decision. A lot of the time emotions can hinder this and a number of cases do end up then being lodged with the Court. This is the most costly option but is the next legal step once mediation fails. 

It can take several months and in many cases up to a year for the case to be heard in Court. The end conclusion is then left for the judge to decide. 

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