Contesting a Will
Contesting a Will is a complex process, we've created this helpful guide to walk you through it.
Here are the main stages of contesting a Will:
- Identify whether you have legal grounds to contest
- If probate hasn’t been granted, your solicitor may request a caveat to prevent the executor from distributing any of the deceased’s assets that you are challenging for.
- Attempt to resolve the challenge by using an Alternative Dispute Resolution (ADR) method, such as mediation.
- If the ADR method fails, your solicitor will kick-start the court process, which should involve both sides sharing information with the view of reducing the overall processing time.
Why do people challenge Wills?
There are several reasons why someone could decide to contest a Will; they may feel they’ve been treated unfairly or that the deceased was pressured or tricked into leaving their estate to somebody who didn’t deserve it.
Who can challenge a Will?
Blood relations e.g. children and parents are those who most often contest Wills, but not the only people who have the right to do so.
A Will can be contested by:
- Blood relations
- A person named as a beneficiary in a previously-made Will
- A spouse, whether they were living together or estranged at the time the Will was written
- A creditor
- Someone who was promised an item or bequest, either verbally or in writing but not included in the Will
- A person who relied on the deceased for financial support or accommodation
Interestingly, it’s rather common for a spouse to be disinherited from a Will. However, such a Will can still be successfully contested even if the testator purposely excluded their spouse.
For what reason can somebody contest a Will?
Although anyone has the right to challenge whether a Will is valid, only people considered family are able to claim that they have not been sufficiently provided for.
You have the right to contest a Will if:
- You were included as a beneficiary in an earlier Will but have since been excluded by the testator with or without knowing
- You were financially reliant on the testator
- You believe the Will to be invalid because the signature was forged, or the person signing it was unaware what they were signing for, or any other reason that makes the Will invalid on legal grounds.
What legal grounds can someone contest a Will on?
There is a certain set of criteria that a Will must fit into for a challenge to be considered under inheritance laws:
- The Will does not adequately provide for people who are financially dependent on the testator
- The Will is invalid because it was incorrectly drawn up, or signed by witnesses who were not present when the testator signed
- The testator’s signature or contents of the Will were forged. However, it’s very tricky to prove forgery in these cases and therefore a successful claim for fraud is rare without the help of a specialist solicitor.
- The testator was under an undue influence or was pressured during the writing of the Will.
- The testator lacked sufficient mental capacity to sign a legal document. It is important that they have full knowledge of the extent of their estate and that this is how it shall be distributed when they die.
How long does it take to contest a Will?
It is impossible to provide an accurate estimate for how long it can take to contest a Will, because there are several factors that may affect the duration of the process.
Firstly, it depends whether or not the other beneficiaries agree with your challenge. E.g. if you have been purposely left out of your mother’s Will, you can still be entitled to part of her estate if your benefiting siblings agree that your exclusion is unfair.
However, it is extremely uncommon for an executor or beneficiary to accept the contesting of a Will. Therefore, months of mediation is often required in order to negotiate an agreement that all parties are satisfied with.
If mediation proves unsuccessful, the claim will be sent to the courts who decide on a date for a hearing. The hearing date is sometimes set 12 months in advance, meaning that complicated challenges can go on for up to two years!
Is there a time limit for bringing about a claim?
The amount of time you have to contest a Will depends on the grounds you are claiming on.
It is strongly advised to acquire legal advice on contesting a Will as soon as possible. Also, it is important you try to contest the Will before probate has been granted, if possible, because the executor can begin disposing of assets as per the Will’s instructions once probate is issued.
If you are named as a beneficiary but think you’re entitled to a higher share of the estate, you have up to 12 years after the death of the testator to claim.
If you are claiming under the Inheritance Act, you must do it within six months of probate being granted.
What is the financial cost?
Every case is unique so it’s difficult to put a price-tag on contesting a Will.
Public funding or Legal Aid is unavailable for people who wish to challenge a Will. But the cost of mediation is significantly low compared to legal fees acquired through the court process. Furthermore, it is incredibly important that, before you begin the process, you make sure you can prove the legal grounds on which you are contesting the Will.
Can a Will be contested without a lawyer?
A Will can be contested without a solicitor, but the likelihood of a successful claim is much slimmer.
Due to their expertise and advanced legal knowledge, a solicitor can scrutinise a Will and identify whether you have grounds to challenge it.
Plus, if your case goes to court you may need a lawyer.
We understand that the prospect of avoiding legal fees is exciting and hopeful, but you’re more likely to end up without a share of the estate (or at least a lesser share than you desire) and if your claim isn’t successful, you may end up having to pay the legal fees of the other party too.
Can a Will be contested on behalf of someone else?
It is possible to contest a Will on behalf of another person if they’re unable to do it themselves. This is most common in cases where a parent is challenging on behalf of a minor who has been excluded from the Will of an absent or estranged parent. The legal provision to do this is made under the Inheritance Act.
Can a Will be contested after probate has been granted?
Yes, a Will can be contested after the granting of probate. However, it is largely better to contest before this point in order to prevent the executor from disposing of assets that you may wish to inherit.
What should an executor of a contested Will do?
Your main duty as an executor is to distribute the testator’s estate according to their wishes set out in their Will. It’s a large responsibility that can certainly bring a lot of stress to the nominated executor, so it is wise to seek help from a solicitor.
Joint bank accounts are a common item of contention when it comes to distributing an estate, as it should be confirmed exactly what portion of the account belongs to each of the account holders.
If both account holders contributed equally into the joint account, whatever is in the account passes on to the surviving account holder, no matter what the Will states.
In contrary, if the deceased contributed significantly more, it could be contested that this forms part of the estate.
In some cases, a testator has sold or given away items included in the Will and even though they are completely entitled to do such a thing with their own property, consideration will still go into whether those things are still a part of their estate.
Can an executor contest a Will?
It is possible for the executor to be a beneficiary too. Under the Inheritance Act, if you want to contest a Will then you must do so within six months of probate being granted; as is the case for non-executor beneficiaries.
If you are an executor as well as a beneficiary and wish to contest the Will, you must step down from the role due to the conflict of interests. Your resignation from the executor position must be done before you have undertaken any executorial duties.
Will I have to go to court?
To save your time and money, a solicitor should always try to resolve such an issue out of court using methods of ADR, such as negotiation and mediation.
However, you should acknowledge that Will contests do not simply go straight to court if mediation is unsuccessful.
There are pre-action protocols which need to be completed by both parties. Annoyingly lengthening the process even more, the waiting time for a court date can be up to 12 months.
If you do end up going to court, you’ll be required to submit a written affidavit before your hearing, which you may be questioned about by the judge and the executor’s solicitor.
If you’re lucky, you’ll get a result on the same day, if it’s not too complex.
A little tip: Courts are often disapproving of parties who have not attempted to resolve the contest out of court.
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