Grounds for contesting a will
Every will and dispute is unique, but most challenges fall into five main categories. Below, we outline the common grounds for contesting a will and answer key questions about the process.
Contact our teamLawyers who specialise in contesting wills frequently use the term ‘contentious probate’ when discussing inheritance disagreements and the validity of wills.
In this guide, we’ll delve into the grounds for questioning a will’s validity and the methods to legally dispute its authenticity.
What is contesting a will?
Contesting a will refers to the legal process of challenging the validity or terms of a deceased person’s will. This can be done if there are concerns about the testator’s mental capacity, undue influence, fraud, or if the will does not meet legal requirements. Contesting a will can be complex, and it is advisable to seek the assistance of an experienced lawyer.
What are the grounds for contesting a will?
Contesting a will involves challenging its validity or the provisions contained within it. There are several grounds on which a will might be contested in the UK, and these are based on the laws that govern how wills are written and executed. Below are the primary reasons:
Lack of valid execution
For a will to be legally valid in the UK, it must be:
- In writing.
- Signed by the testator (the person making the will) or by another person in the testator’s presence and by the testator’s direction.
- Witnessed by two independent adults who then sign the will in the presence of the testator.
If any of these conditions are not met, the will might be considered invalid.
Lack of testamentary capacity
The testator must have the mental capacity to make a will at the time it’s written. This means they must understand:
- They are making a will and the effect of that will.
- The extent of the property they are bequeathing.
- The moral claims to which they ought to give effect (i.e., understanding the obligations they have to certain people).
Undue influence
This occurs when the testator is forced or pressured into writing the will in a particular way. If there’s evidence that someone exerted undue influence over the testator, leading them to make or alter their will, the will might be deemed invalid.
Lack of knowledge and approval
If it can be demonstrated that the testator did not know of or approve the contents of their will, it might be invalidated. For instance, if someone tricked the testator into signing a will they did not understand or agree with.
Forgery or fraud
If there’s evidence that the will or any part of it was forged, or if someone provided false information to the testator which influenced the contents of the will, then it can be contested on these grounds.
Revocation
A will can be revoked by the testator while they are still alive. This can be done by creating a new will or by some other act that indicates the intention to revoke, like physically destroying the will. If there is evidence that the will was revoked before the testator’s death, it would be invalid.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975
Even if a will is valid, certain individuals, such as a spouse, child, or dependant, can claim that the will does not make reasonable financial provision for them. These individuals might contest the will to seek a share or a larger share of the estate.
Ambiguities
If there are uncertainties or ambiguities in the wording of the will, it might lead to a dispute about the testator’s true intentions.
Incorrectly drafted will
Errors or omissions, especially in DIY wills or those not prepared by professionals, can lead to disputes.
If someone believes they have grounds to contest a will, it is essential to seek legal advice promptly. The process can be complex, and there are strict time limits in place, especially for claims under the Inheritance (Provision for Family and Dependants) Act 1975.
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Can you contest a will after probate?
Yes, you can contest a will after probate, but it becomes more complex once the estate has been distributed. Claims under the Inheritance (Provision for Family and Dependants) Act 1975 must be made within six months of probate being granted. Other challenges, such as those based on fraud, undue influence, or lack of capacity, may have longer time limits. Acting quickly and seeking legal advice is essential to protect your rights.
Can you contest a will before the person has died?
No, you cannot contest a will before the person has died because a will has no legal effect until death. However, if you have concerns about undue influence or the testator’s mental capacity, you can seek legal advice and gather evidence to support a future challenge. In some cases, a statutory will may be an option if the person lacks capacity.
Questions surrounding a will’s validity
Several factors can question the legitimacy of a will. Below, we delve deeper into the elements that may raise concerns about a will’s validity:
Is the will correctly formalised?
There are stringent regulations concerning the signing of wills. Errors can easily arise, particularly when the individual drafting the will or their witnesses make mistakes. Administrative oversights or inadequate drafting, which results in unclear or unfulfillable wishes of the testator, can invalidate a will. If imprecise drafting causes a will to be void, guidance can be sought on making professional negligence claims against legal practitioners or will drafting professionals.
Has the will been tampered with or forged?
Occasionally, doubts arise regarding the genuineness of a will, raising suspicions of alterations, forgery, or fraudulent creation. For instance, if the wording or endorsement on the will appears inconsistent with the purported author’s usual style.
Was there external coercion involved in the will’s creation?
At times, individuals, especially the vulnerable, may be manipulated or constrained into drafting a will that doesn’t truly represent their wishes. This manipulation is termed as ‘undue influence’.
Did the individual possess the mental capacity to draft a will?
For someone to possess the mental clarity required to draft a will, they need to meet several conditions. They must be aware of the repercussions of their decisions, comprehend the estate’s content they’re bequeathing, and be in a state of ‘clear mind’. Medical conditions impairing rational thought might introduce uncertainties about their mental clarity. This is often termed by legal professionals as a ‘lack of testamentary capacity’.
Was the individual aware and in agreement with the will’s content?
If there are any anomalies in the circumstances surrounding the will’s creation, it can cast shadows of doubt over its legitimacy. Doubts might arise, for example, if a primary beneficiary had a significant role in orchestrating or even drafting the will.
Addressing unfulfilled promises
If an individual has been assured certain assets or properties by the deceased, but this assurance isn’t mirrored in the will, a legal claim might still be possible. This legal principle, known as proprietary estoppel, essentially pertains to an ‘unkept promise’.
For such a claim, evidence must be presented to prove the assurance of the property, the reliance on this assurance, and the potential detriment faced if this assurance isn’t honoured. The court then decides on whether to award the entirety or a fraction of the property, or to provide compensation from other estate segments.
We can provide assistance to initiate or counteract claims of this nature.
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Who can challenge a will?
Not everyone has the legal right to challenge a will. However, several categories of individuals may have a basis upon which to contest. Below is an outline of those who might be eligible:
Beneficiaries under a previous will
If someone was a beneficiary under an earlier version of the will but finds they have been excluded or are set to inherit less under a newer version, they may have grounds to challenge.
Beneficiaries under the current will
Beneficiaries named in the current will can challenge its validity if they believe there are legitimate grounds to do so, such as concerns about undue influence or the mental capacity of the testator at the time the will was made.
Intestate beneficiaries
If a person dies without a will (dies intestate), the law sets out who should inherit their estate. If a valid will subsequently comes to light which disinherits one of these intestate beneficiaries, that person might seek to challenge the validity of the will.
Dependants of the deceased
Under the Inheritance (Provision for Family and Dependants) Act 1975, certain individuals can claim that a will (or the rules of intestacy) does not make reasonable financial provision for them. This can include:
- Spouses or civil partners of the deceased.
- Former spouses or former civil partners who haven’t remarried or entered into a new civil partnership.
- Children of the deceased (including adult children).
- Individuals treated as a child of the deceased (for example, stepchildren in certain circumstances).
- Cohabitees who lived with the deceased as husband, wife, or civil partner for at least two years immediately prior to the death.
- Anyone else who was financially dependent on the deceased at the time of death.
Creditors
If the deceased owed money to someone, that creditor might challenge the will to ensure they get paid. This might be the case if there are suspicions that the deceased transferred assets before death to avoid them being used to repay debts.
Individuals with promised inheritance
If someone was verbally promised an inheritance from the deceased but this wasn’t reflected in the will, they may have grounds to make a claim under the legal doctrine of proprietary estoppel.
Others with specific claims
There might be other individuals with unique or specific claims against an estate or will, based on individual circumstances.
If someone believes they have the right and grounds to contest a will, they should seek legal advice promptly. The process of challenging can be intricate, and there are strict time limits for certain types of claims, especially under the Inheritance Act.
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Criteria for a valid will
Under section 9 of the Wills Act 1837, for a will to be recognised as valid, it should:
- Be documented in writing.
- Bear the signature of the testator or another individual signing on their behalf, under their direction.
- Reflect the testator’s genuine intention for its legitimacy upon signing.
- Moreover, at least two witnesses should be present to attest to the testator’s signature.
If doubts arise regarding a will’s legitimacy, the primary step is to determine its correct execution. This could mean reaching out to those who witnessed its signing to gather more information about its execution context.
Assuming the will is executed correctly, it’s typically assumed to be legitimate unless specific issues highlighted subsequently come into play.
When to challenge a will
Should there be uncertainties about a will genuinely mirroring the deceased’s intentions after their demise, it’s paramount to consult with experts. It’s essential to start with a meticulous examination of the specifics and anticipated results.
In general, challenges against a deceased individual’s assets can be initiated up to 12 years from the death date. Yet, this isn’t a constant rule, with certain specific exemptions in place, such as claims for corrections or under the Inheritance (Provision for Family and Dependants) Act 1975.
It’s advisable to initiate inquiries promptly, prior to significant estate administration. Responses from involved parties may require time, and the clarity of memories from helpful sources can wane over time. The extent to which the estate has been administered estate can also influence the Court’s perspective.
Multiple grounds to dispute a will’s validity exist. Every situation is distinct, so anyone considering challenging a will should have a comprehensive understanding of the deceased’s persona, familial dynamics, any stated wishes to acquaintances or family, and compare this with the concurrent evidence on hand. This aids in helping to make an educated judgement about whether to challenge the will and the rationale for doing so.
What happens when contesting a will?
Contesting a will in the UK is a legal process that involves challenging the validity or provisions of a will. It can be a complex and emotionally charged procedure. Here’s a general overview of what happens when a will is contested:
Grounds established
Before initiating the process, it’s crucial to establish on what grounds the will is being contested. Common reasons include undue influence, lack of testamentary capacity, lack of valid execution, and fraud or forgery, among others.
Legal advice
Given the complexities involved, it is advisable to seek legal advice. A solicitor will help determine the strength of the case, the evidence required, and advise on the best course of action.
Mediation
Before proceeding to court, parties often try to resolve the dispute through mediation. This involves an independent third party (a mediator) who facilitates discussions between the parties in the hope of reaching a mutually acceptable agreement. Mediation can be less costly and quicker than court proceedings.
Evidence gathering
Parties involved will need to gather evidence to support their claims. This might include medical records (to determine mental capacity), witness statements, or expert opinions, such as handwriting analysis in cases of alleged forgery.
Court Proceedings
If the parties cannot reach an agreement outside of court, the matter may proceed to a trial. Both sides will present their evidence, and the judge will make a decision based on the presented facts and applicable law.
Outcome
There are several potential outcomes:
- The will could be declared invalid. In this case, a previous will might take effect, or if there’s no prior will, the rules of intestacy would apply.
- The court could amend the will to make provision for a claimant, especially if the challenge was under the Inheritance (Provision for Family and Dependants) Act 1975.
- The will may be upheld, and the challenge dismissed.
Due to the complexities and potential ramifications involved, those considering contesting a will should be well-informed and ensure they’re taking action for the right reasons. Legal advice and guidance are paramount in such situations.
What is the time limit for contesting a will?
Contesting a will in the UK is subject to specific time limits, and these vary depending on the nature of the claim. It’s crucial to act promptly and be aware of these deadlines, as failure to adhere can jeopardise one’s ability to challenge. Here’s an overview of the relevant time limits for different types of challenges:
Inheritance (Provision for Family and Dependants) Act 1975 Claims
If you’re claiming that the will (or intestacy rules) does not make reasonable financial provision for you, you generally have six months from the date when the Grant of Probate (or Letters of Administration if there is no will) is issued. There are exceptions, where the court may allow a claim to be brought outside this timeframe, but this is discretionary and not guaranteed.
Claims of fraud or forgery
There is no strict time limit for claims based on allegations of fraud or forgery. However, it’s crucial to act promptly as any undue delay can influence the court’s willingness to hear the claim and the practicalities of gathering evidence.
Claims based on lack of testamentary capacity, undue influence, lack of knowledge and approval, or invalid execution
Like fraud or forgery claims, there isn’t a strict time limit for these challenges. Yet, swift action is recommended, especially to preserve evidence and ensure that assets aren’t distributed in the meantime.
Proprietary estoppel claims
For claims based on proprietary estoppel, where someone was promised a portion of the estate but this was not reflected in the will, there is no fixed time limit. However, it’s advisable to act quickly due to the equity maxim “delay defeats equity,” meaning the court might refuse a claim if it’s delayed unnecessarily.
Claims to rectify the will
If you believe there’s an error in the will (for example, a clerical error or it doesn’t reflect the testator’s true intentions), you have six months from the date of the Grant of Probate to apply for rectification.
Claims by creditors
Creditors of the deceased have no specific time limit for their claims, but it’s practical to act quickly, especially before the estate assets are distributed.
It’s essential to be aware that even if a specific claim type doesn’t have a strict time limit, the general principles of limitation can still apply. The Limitation Act 1980 might be relevant, depending on the nature and circumstances of the claim.
In all scenarios, seeking early legal advice is paramount. Solicitors such as Moore Barlow LLP will be able to provide guidance on the specifics of the case, ensure you’re within the relevant timeframes, and advise on the best course of action.
What proof do you need to contest a will?
To contest a will, you need evidence supporting grounds for challenge, such as medical records showing lack of testamentary capacity, witness statements indicating undue influence, proof of improper execution, or indications of fraud. Legal guidance is crucial to navigate the intricacies.
Documents written by the testator that diverge from the will’s content can be instrumental, especially in contentious probate matters. If such documents are identified and authenticated, they might shed light on the testator’s genuine wishes.
How much does contesting a will cost?
The cost of contesting a will varies, ranging from a few thousand pounds for straightforward cases to tens of thousands or more for complex disputes that reach trial. Factors include legal fees, court charges, expert costs, and potential adverse cost risks.
Who pays for contesting a will?
Typically, the person contesting the will initially bears their own legal costs. However, the court can sometimes order the losing party to pay the winner’s costs, or costs might be drawn from the estate. Each case is determined on its individual merits.
How long can contesting a will take?
Contesting a will can vary in duration, from a few months for more straightforward cases resolved amicably, to several years for complex disputes that proceed to trial. Factors influencing the timeframe include the case’s complexity, the willingness of parties to negotiate, and court availability.
How to prevent someone contesting a will?
To minimise the risk of a will being contested, ensure it’s drafted clearly by a solicitor, discuss decisions with beneficiaries, obtain a medical report confirming mental capacity, use witnesses with no vested interest, and consider potential claims under the Inheritance Act.
How to defend against someone contesting a will?
To defend against a will dispute, engage a solicitor experienced in probate disputes, gather evidence affirming its validity, secure testimony from the will’s witnesses, obtain medical records proving the testator’s mental capacity, and consider mediation for resolution so that it doesn’t need to go to court.
What happens in mediation when contesting a will?
In mediation concerning a contested will, an impartial mediator facilitates a structured discussion between disputing parties, aiming to reach a mutually agreeable resolution. The process is confidential, and the mediator doesn’t impose decisions but helps explore options. If an agreement is achieved, the parties will draw up a legally binding contract to reflect the agreement; if not, parties may proceed to court.
Can contesting a will be successful?
Contesting a will can indeed be successful, but its outcome largely depends on the specific circumstances of each case. Success hinges on presenting strong evidence that supports the grounds for contestation. Common successful challenges relate to the testator’s mental capacity, undue influence, improper execution, or fraud.
Challenging a will in the legal system can be daunting and might not be feasible without solid evidence ensuring a likely win. Hence, seeking guidance from a solicitor promptly is crucial.