Contesting a Will

Who can contest a Will or Estate?

• A beneficiary of the Will or a previous Will.
• Someone who was given a promise that they’d receive an inheritance.
• A relative or former spouse.
• Anyone who was dependent on the deceased.

When can a Will be contested?

• When there is a question over the interpretation of the Will.
• When there is an issue regarding the validity of the Will.

How else can a claim be made against an Estate?

Certain relatives and those who were dependent on the deceased may be eligible to bring a claim against the estate, regardless of whether there is a valid Will or not, under the Inheritance (Provision for Family and Dependants) Act 1975. You can find out more about how we can help you with making Inheritance Act claims.

Time limits when contesting a will

There is a claim time limit of 6 months from the date that the Grant of Probate is issued, in some circumstances. Other types of challenges, do not carry any time limit however it is always preferable to act promptly to prevent the estate from being distributed.

Dispute Resolution

Our team of experienced solicitors understand that these issues can be very difficult to deal with, particularly after the death of a loved one. We will deal with the dispute on your behalf in an attempt to reach a quick resolution. Our dedicated Dispute Resolution team will handle your matter sensitively and advise you appropriately in relation to your individual case, providing you with practical and pragmatic advice. Each dispute of this type is different, and we consider each case on its own merits.

We will always endeavour to inform you immediately of the prospects of succeeding with your case and the issues which need to be determined when contesting a will.

We also understand that facing a dispute with a family member or someone who may have been close to you is a stressful experience. We make the process easier for you whilst having regard to the law and the issues involved.

We suggest that negotiation and mediation be attempted, if appropriate, but we will go to Court if needed.

It is important that disputes of this kind are dealt with quickly to avoid future complications (time limits might apply). Also, you should seek our advice early once you become aware of possible issues.

For free initial advice, please contact us at 0800 294 4410.

Contact us

To learn more about how our Wills Probate and Trust team can help you make the right decisions for you and your family, please call 0800 294 4410, email wills@marsdenrawsthorn.com or contact us.

Was the Will executed correctly?

The execution of a Will requires the document to be signed and witnessed correctly, in accordance with the legal requirements. In brief, the Will must be signed by the testator (the person making the Will) in the presence of two witnesses. The witnesses must also sign the document.

Did the person have the mental capacity to make a Will?

To successfully execute a Will, a testator must have what is known as testamentary capacity. There is a specific legal test to be applied which includes that the testator must know the consequences of making their Will. They should also know the contents of the estate they are leaving behind and be able to consider any potential claims that could affect their estate. If the testator has a mental illness that could affect their capacity, there may be sufficient doubt as to whether they had testamentary capacity. This can shift the burden of proving capacity onto those seeking to rely on the Will in question, and they must then prove that testamentary capacity was present.

Did the person have knowledge of the contents of the Will and approve it?

A testator must know and approve of the contents of the Will they are signing. Therefore, they must understand what it contains and agree to it. This is often challenged in circumstances of homemade Wills. Perhaps where a beneficiary was involved in its preparation, and there is evidence that the testator was not truly aware of what was contained in the document (even though they did have testamentary capacity, for example).

Was the person placed under undue influence to make the Will?

Undue influence is a legal term for circumstances where vulnerable people have been pressurised or coerced into making a Will. That is, they would not have been executed if it were not for the serious pressure they endured. The burden of proving this lies with those seeking to set aside the Will on this basis.

Steps to take when contesting a Will

All of these challenges are best resolved with expert legal advice. It is preferable for all involved to attempt to resolve the issue before it reaches court proceedings. If litigation in court is required, the question for the court will be to determine the document’s validity. If the Will is held to be invalid, then the last valid Will of the testator takes effect (if there is one). It is advisable to act quickly and to consider placing a Caveat at the Probate Registry to prevent a Grant of Probate from being issued if you have legitimate concerns about the validity of a Will. This will prevent the executors from securing a Grant of Probate whilst your concerns can be addressed. Using a solicitor to do this ensures that no mistakes are made and all of the above validity issues can be evaluated.

Defending a Will

You may be the executor of a Will that is being challenged. Contesting a Will can sometimes cause a delay in obtaining probate and therefore distributing the deceased’s assets. Executors have important legal duties that they must comply with to avoid being responsible for any litigation costs, personally. Any claim against a Will or estate needs to be carefully assessed and dealt with promptly. We act for many clients in defending Will challenges and estate disputes.