Understanding the process behind contesting a Will

When someone dies, it is often a time of high emotion for family and loved ones.

Although inheritance is usually the last thing on people’s minds, assurances are needed to ensure that the wishes of the deceased are carried out properly and that those who should benefit from the estate do.

This often involves examining the deceased’s Will, which dictates how the estate should be distributed.

It can sometimes be necessary to challenge a Will and this may feel quite daunting.

However, if you have concerns about the way the Will was drafted, you feel you haven’t been made adequate provision for or you believe that the Will being followed is not the most recent version, then you may be able to challenge it.

Contesting a Will in England and Wales is a complex but clearly prescribed process, which is based on specific legal grounds that may vary depending on the circumstances.

However, a dispute can take time and be stressful, so you must take legal advice throughout the process

What are the grounds for contesting a Will?

In England and Wales, a Will can be challenged on several legal grounds, including lack of testamentary capacity, lack of knowledge and approval, undue influence, fraud/forgery or failure to meet the legal formalities upon signing a will.

A lack of mental capacity – If the testator did not have full mental capacity at the time the Will was made.
Undue influence – If the testator is pressured or coerced into making a Will or changing their existing Will.
Lack of knowledge and approval – The testator must have understood and approved the contents of the Will for it to be valid.
Lack of valid execution – A Will can be contested if the basic legal requirements haven’t been met, such as the formalities for signing haven’t been met.
Forgery and fraud – If a Will is forged or is subject to fraud, it will be deemed invalid.

You can also challenge a will if the deceased made a promise to someone in their lifetime to leave them something in their will and then this promise wasn’t kept. This is called promissory or proprietary estoppel

If a Will is challenged successfully, it usually means the estate will be distributed under the terms of any previous will the testator made.

It’s important to note that just because a child, spouse or other family member is excluded from a Will or is not left as much as they were expecting, this does not mean they can automatically challenge the validity of a Will.

When writing a Will, you can choose whom you leave your estate to, and you don’t have to make provision for your spouse or your children.

However, claims can be brought against an estate. This includes if a person dies intestate, under the Inheritance (Provision for Family and Dependants) Act 1975 for “reasonable financial provision”.

How successful a claim is will depend on factors like your financial circumstances, the other beneficiaries’ needs, the size of the estate and the previous conduct of the testator and the excluded beneficiary.

What does the dispute process typically look like?

The first step is always to seek advice from a solicitor. They will look at the Will and investigate its validity or try to ascertain why the estate has been divided as it has.

In cases of the Will being invalid, there is no strict statutory limit, but a judge may decide not to accept a challenge if there is an unreasonable delay. If a will has already been proved, so probate has been granted, and the estate distributed it may be more difficult to challenge.

In the case of fraud or forgery, where the act is quite deliberate, there is no time limit to bringing a challenge.

To begin a claim to challenge the validity of a Will, you must then file a caveat, also known as a legal stop, with the Probate Registry to freeze probate and stop the estate from being distributed.

Inheritance Act claims can be brought within 6 months of the Grant of Probate being issued.

You must then take steps to try and resolve the issue outside of court, whether this is through mediation or negotiation.

If no agreement can be reached, a Judge will review all the evidence and come to a legally binding decision, but be aware that the court process can take years to resolve disputes and settle an estate, and this can be very expensive.