How to contest a Will
- AuthorNick Berry
If you believe someone’s will is wrong or that the will has not been correctly implemented, you may have cause to contest their will or make a claim against their estate. Here’s a step-by-step guide to contesting a will and submitting a successful claim.
Wills – the basics
A last will and testament should specify what will happen to someone’s money, property and possessions in the event of their death. Wills can also include care instructions for children who are under 18 years of age.
Wills are a formal legal document so must be correctly signed and witnessed to be considered legally valid. Probate is the process of confirming that a will is valid.
Technically, anyone can write their own will. However, to avoid problems in executing the will - and to prevent a will being contested - it’s always best to seek advice from a reputable and experienced legal professional. Wills must be stored safely, either at home, with a solicitor or another third-party offering the safe storage of wills.
If the deceased has not made a valid will, the law will determine how their estate is to be administered and who is due to inherit their assets. This process is known as intestacy.
Under what circumstances can a will be contested?
Challenging a will or making a claim against an estate can be a complex process so it’s sensible to ask a reputable legal expert to advise you before you commit to formal legal proceedings.
To contest a will or make a claim against an estate you may need to be the spouse, child or cohabitee of the deceased, someone financially dependent upon the deceased or someone who has been expressly mentioned in their will (or a previous version of it). You’ll also need valid legal grounds to contest the last will successfully. These can include:
- Lack of testamentary capacity. The deceased (known as the testator) must have been of sound mind when they created and signed the document and must have understood the full extent of their assets and who they chose to include and exclude and the effect of this. If they did not then they may not have had testamentary capacity when they signed the will.
- Lack of due execution. The testator must have followed the correct procedure when signing their heir will. Failure to do so may mean the will is not valid.
- Undue influence. This covers cases where there is significant evidence to suggest the testator has been manipulated into making a will in accordance with the wishes of the person influencing them.
- Fraud. This covers cases where there are valid grounds to suggest that the will has been forged, for example if the person instructed to formalise a will includes false terms to benefit themselves and forges the signature of the testator.
How long do I have to contest a will?
To contest a will or make a claim against an estate, it’s best to act as quickly as possible as there might be a strict time period for legal proceedings to be started. The precise period of time will depend on the nature of the claim – the most common types of claims are:
- Claims for reasonable financial provision: 6 months from the issue of the grant of probate
- Beneficiary disputing a will: 12 years from date of death however, these disputes often involve claims for financial provision and therefore the 6 month rule above would apply.
- Fraud – No time limit
Contesting a will or claiming against an estate – your step-by-step guide
1 Seek legal advice
As a matter of urgency, seek professional legal advice so that a claim is made within the permitted time constraints. Although it’s possible to contest a will after probate has been granted, it’s always preferable to make a claim beforehand.
2 Lodge a caveat
In some circumstances a caveat can be entered to prevent the issue of a grant of probate or letters of administration. This allows the circumstances regarding your claim to be considered, by the court if necessary, and prevents the administration of the estate being progressed without your claim being taken into account.
3 Pursue court action
Quite often disputes can be resolved without the need to go to court for example through mediation or another form of dispute resolution. If you’re not able to reach agreement during the caveat stage, a formal court claim can be submitted. Legal costs can soon mount up for prolonged disputes which is why it is always preferable to reach agreement outside the courtroom if you can.
If a will is declared invalid by the Court then an earlier valid will may be upheld. If not , the money, property and other possessions of the deceased might be distributed under intestacy law
What to do if someone else contests a will
If you have to deal with a formal claim about a will for which you are the executor or beneficiary, or you are representing the deceased in some other capacity, you should seek expert legal advice as soon as possible.
If you can, aim to reach an agreement without going to court, but make sure you take advice before doing so. If it is subsequently found that you have acted incorrectly it could be costly for you.
For more information of to discuss your own case, contact Nick Berry at our Halifax office on 01422 339600 or email email@example.com