Contesting a Will

How to contest a Will

The main purpose of a Will is to make sure an individual’s wishes are carried out after they pass away. But if you believe that a loved one’s Will is not what they would have wanted, or you think it could be invalid, you may have grounds to contest it.

Your first step should be to enter what’s called a ‘caveat’ with the Probate Registry. This will put a pause on any probate application for six months. So you’ll have time to conduct your own investigations and decide whether you have grounds to challenge the Will in question.

We would always suggest consulting a Wills and probate solicitor before going down this route, as things could get complicated if the executor of the Will decides to retaliate. Our solicitors are experts in this area, and will help you navigate the process.

Grounds for contesting a Will

There are several grounds for challenging a Will. They are:

• Lack of testamentary capacity
  The general rule for testamentary capacity was first established in the case of Banks v Goodfellow (1870). The ruling set out that any individual writing a Will must have an understanding of what it will entail and the implications for those close to them.

If you believe your loved one did not have testamentary capacity at the time of drafting their Will, you could argue that the document is invalid. This might apply if your loved one had a degenerative condition such as Alzheimer’s or dementia when the Will was made.

• Undue influence
  If the person who wrote a Will (the testator) was heavily influenced by someone else, you could claim that the Will is invalid. But to do this, you’ll need to prove that there is no other reasonable explanation for the terms set out in the document.

This is often very difficult, as the chief witness (the person who has died) won’t be able to testify. And it’s likely that if any intimidation had taken place, it would have been behind closed doors, meaning there will be limited – if any – witnesses available.

• Lack of knowledge and approval
  Even if the testator had testamentary capacity at the time of writing their Will, they still may not have properly understood its contents. This could apply if the individual had low literacy levels, was visually impaired or was unwell when they drafted the Will.

You may find yourself contesting a Will for this reason if the terms of your loved one’s Will seem unusual or arouse suspicion. For example, if a particularly large gift was left to someone you would not expect.

• Forgery and fraud
  Out of all the reasons to contest a Will, forgery or fraudulent activity is among the most serious. But it is also one of the most difficult grounds to prove. You’ll likely need to instruct a handwriting expert to review samples of the deceased person’s writing and reach a conclusion.

While fraud and forgery is often compared to undue influence, they are not one and the same. The main difference is that undue influence has to involve a degree of pressure or persuasion, whereas fraud or forgery does not.

• Rectification
  If you believe a mistake has been made in the drafting of your loved one’s Will, you could apply to have the court rectify it so that it’s in line with the testator’s wishes. You’ll have six months from the grant of probate being issued to make a claim of this nature.

Wills can only be contested on this basis if the Will writer made a clerical error, or if they failed to understand the testator’s instructions. If a professional understood the testator’s wishes but incorrectly applied the law, there could be a case for professional negligence.

How much does it cost to contest a Will?

There is no straightforward answer to this, as every case is unique. It will ultimately depend on the nature of your claim, how long it takes to settle and whether the court finds you in favour.

When a dispute is settled out of court, the legal costs are usually much lower than when a case goes all the way to trial. This is just one of the reasons why mediation is so important, as well as the fact that it can prevent some of the emotional turmoil that comes with a lengthy probate dispute.

It will usually be the individual or group who are challenging a Will that will initially take on the cost of legal proceedings. But if the challenge is successful, the other side (usually the executor or beneficiaries) may be ordered to pay for the winning party’s costs.

Who can contest a Will?

To legally contest a Will, you must be a spouse, child or someone who lived with the deceased, or someone who is expressly mentioned by name in either the current Will or a previous version.

If you meet the criteria above and you feel you have been unfairly treated in a Will, you might be able to challenge it. For instance, you may have been financially dependent on the deceased and did not receive enough in the Will to support yourself.

You may also have concerns about whether a Will truly reflects the wishes of your loved one.

Whatever your reasons are for challenging a Will, you should speak to a legal professional sooner rather than later. There are time limits in place for when you can take legal action, so it’s always best to act quickly.

How long do I have to contest a Will?

This will depend on the type of claim you’re making.

If you are claiming under the Inheritance (Provision for Family and Dependents) Act 1975, you’ll have six months from the granting of probate to challenge a Will. But in other cases, beneficiaries will have up to 12 years from the date of the testator’s death to take legal action.

It’s also worth noting that there is no time limit to contest a Will where fraud or forgery has taken place. But we would still suggest speaking to a solicitor early on, as these claims can be difficult to prove.

How long does contesting a Will take?

Again, this will depend on the individual circumstances of your case. If you’re challenging a Will due to a clerical error, it is likely to take much less time than proving fraud or forgery has taken place.

Whether or not the other party is willing to take part in alternative dispute resolution – such as mediation – will also determine how long the process takes. A best case scenario would be that you’re able to come to an agreement early on, without the need for lengthy court proceedings.

Although it’s difficult to predict exactly how long it will take to contest a Will, your solicitor will do their best to keep you updated with timescales throughout the process.

What happens if you’re successful?

If you’re successful in making your claim, the Will should be declared invalid. It will then be replaced by the most recent previous version of it. If there isn’t another Will, the rules of intestacy will be applied.