When someone dies and they leave a Will, it is hoped that it is valid and legally binding. However, in some cases, this doesn’t happen and it can be necessary for living loved ones, relatives or dependents to contest a Will for a variety of reasons. This article will explain the legal grounds for contesting a Will and how to do this.
At Eric Robinson Solicitors, we understand that losing a loved one is always hard, especially if complications arise surrounding the deceased’s estate. Needing to dispute a Will whilst navigating grief may be overwhelming which is why our experienced team of Dispute Resolution solicitors are here to guide you through each and every step of the way. If you would like to speak to one of our qualified solicitors about navigating this process, you can call us on 02380 218000, or contact one of our six office branches.
What is contesting a Will?
Contesting a Will means legally challenging its validity or the way the estate is due to be distributed. Typically this is because it is suspected that the Will is not a true reflection of the deceased’s wishes or does not fairly provide for living dependents. Often circumstances like undue influence, lack of mental capacity, forgery or fraud emerge as reasons for this.
Who can contest?
Anyone who believes that they have a legitimate interest in the Estate can legally challenge a Will under UK law. This includes:
- Living relatives eg. spouse, children, siblings
- Executors
- Beneficiaries
- Beneficiaries mentioned in previous Wills
- A financial dependent
- Someone or an organisation who was promised an inheritance, or who has been disinherited
Grounds for contesting
Under UK law, Wills can be contested under a number of circumstances. These include:
- Lack of capacity: Sometimes it can be argued that the person who made the Will did not understand the nature of the decisions taken for the purposes of drafting the Will due to lack of mental capacity. For example, if the deceased person suffered from dementia when the Will was made it could be deemed invalid if their illness had progressed too far so that they did not understand what they were doing or were not aware of the effect of their decisions. In such circumstances, it could be argued that the latest version of the Will doesn’t reflect the decisions they would have made a few years earlier when they still had capacity.
- Invalidity: The Will doesn’t meet the criteria for what is considered a valid Will. This might include: not being written down, not being signed or witnessed correctly, or not being readable.
- Undue influence or duress: Unfortunately vulnerable people are sometimes taken advantage of, including by being coerced into making or changing a Will to suit the person manipulating them. If loved ones suspect that this has happened, they can contest the Will on these grounds.
- Fraud or forgery: If it is suspected that the signature on the Will has been forged by someone other than the deceased person, then the Will can be challenged.
- Financial dependency – If you are not due to inherit under the deceased’s Will but you were financially dependent on the deceased at the date of their death, you may be entitled to seek financial provision from the Estate under the Inheritance (Provision for Family and Dependents) Act 1975. Only certain categories of dependent can bring a claim and there is a strict 6 month time limit which starts on the date that the Grant of Probate is issued.
The process of contesting a Will
In general, a challenge to a Will must be made within six months of probate being granted. However, there is no time limit to making a claim to dispute whether a Will is valid.
Step 1: Speak to a solicitor
The process of disputing a Will can be sensitive and complicated so if you suspect that something is amiss with the Will of a loved one, it is important to seek legal advice from a qualified Will Dispute Solicitors before going further.
Step 2: Let the executors of the Will know
Inform the executors of the Will that you are making a claim before any assets are distributed.
Step 3: File a ‘Caveat’
This means that you request time to investigate the circumstances surrounding the drafting and execution of the Will. The Caveat is lodged at the Probate Registry and will prevent the Grant of Probate from being issued prior to your enquiries being answered and/or resolved. The Caveat will last for 6 months and this should provide time for you to gather evidence for your claim. However, if you require longer you can apply to have the Caveat extended for a further period of 6 months. During this time the executors named in the Will can issue a Warning against the Caveat. If you fail to file an Appearance to the Warning, giving your legitimate reasons for maintaining the Caveat, then your Caveat will be removed by the Probate Registry allowing the executors to go ahead with the application for the Grant of Probate.
Step 4: Gather evidence
You will need to obtain a copy of the Will and gather any medical records or circumstantial evidence that back up your claim for the Will being invalid or unfair. You may need to contact the writers of the Will or the solicitor that helped create it for information around its creation.
Step 5: Resolution
The case will be resolved in one of two ways:
- You will come to an agreement with the other parties interested in the Estate either with or without the need for mediation.
- If you cannot reach an amicable agreement you will need to take the case to court.
Alternatives to contesting a Will
If your case does end up needing to go to court, this can be very expensive in terms of legal fees and can take a long time. The alternative course of action that you could take is speaking to a solicitor about Alternative Dispute Resolution (ADR) which includes: negotiation, mediation, arbitration and conciliation. Our expert Solicitors are fully trained in all areas of ADR.
At Eric Robinson Solicitors, we have years of experience in bringing disagreements over Wills to an amicable end. We will help you avoid costly legal battles so that you can move on swiftly and in the cast of Will disputes, focus on your grief.
How to avoid Will disputes
In order to avoid leaving your loved ones with uncertainty surrounding your Will and estate distribution, it is important to leave a clear and valid Will. Eric Robinson’s expert Will Writing solicitors can guide you through creating an accurate Will. It is important to seek legal advice to ensure that your Will accurately reflects your wishes after you die.
It is also important to make sure you update your Will after important life events such as getting married, or having children. This is especially important in cases of second marriages and when you have children from two or more relationships. Family members and dependents who are not fairly provided for in your Will have the grounds to dispute it which is a difficult process.
To avoid putting your loved ones in this position, ensure your Will is accurate, up to date and you have clearly communicated your wishes to your family and friends so that there are no surprises when the time comes time to distribute your assets.
To speak to our expert Will Writing solicitors about how they can help you with yours, get in touch with one of our local branches at the following locations: Southampton, Hedge End, Chandlers Ford, Winchester, Lymington, or Richmond Upon Thames.
How Eric Robinson Solicitors can help
It is always a difficult time when a loved one dies, and even more so when their loved ones have questions over their Will. If you are in this position, Eric Robinson’s expert Will, Probate and Estate Dispute solicitors can help.
We can guide you through the process of forming a claim against a Will, and either reaching a resolution through mediation, or court proceedings.
For advice relating to Will Writing, Will disputes or mediation, speak to our team by contacting your local office in Southampton, Hedge End, Chandlers Ford, Winchester, Lymington, or Richmond Upon Thames.
FAQ’s About Contesting a Will
Can you contest a Will after probate?
You can contest a Will after Probate has been granted. However, there are time limits depending on the grounds of your claim, and it can be expensive so it is important to bear this in mind.
Claims against a Will based on the right of family and dependents to inherit must be made within six months after Probate has been granted. Any claims based on suspected undue influence, fraud, forgery or incapacity have no time limit, though it may be difficult at that point to reclaim assets once they have been distributed.
It is also expensive to dispute a Will after probate has taken place, so it may be better to opt for an alternative form of dispute resolution like mediation with the help of qualified dispute resolution solicitors.
How long do you have to contest a Will?
Ideally, you would contest a Will as soon as possible and before Probate has been granted. You have until 6 months after the Grant of Probate for dependency claims. For claims related to forgery, fraud, undue influence or incapacity, there is strictly speaking no time limit.
Who cannot contest?
You have to be able to prove a legitimate interest in the Will and Estate in order to contest it. If you are not a realistic potential beneficiary based on family relationships, a promise made by the deceased person, or a previous Will then you may not be able to make a valid claim.
Can a Will be contested before death?
In the majority of cases a Will cannot be legally contested before death because the person may make changes to their Will up until the point of death. In some cases disputes can take place if the person has lost mental capacity, but you should seek legal advice on the specific circumstances in which this is possible.
Can you stop someone from contesting?
There are many ways for an individual to prevent their Will being contested while they are alive:
- Register and store your Will safely.
- Explain to family and friends why it is fair.
- Make amendments to the Will to keep up with any big life changes and revoke other Wills clearly.
- Insert a ‘no contest’ clause into the Will which will mean beneficiaries forfeit their share if they contest the Will. You can speak to a qualified Will Writing solicitor about this.
- Arrange to have a medical professional confirm your mental capacity at the time of creating the Will.
