Grounds for contesting a will

Losing a loved one is incredibly distressing so dealing with any uncertainty surrounding their will can be both upsetting and confusing. However, if you feel that your loved one’s wishes are not being honoured or that there are issues with how the document was created, you may decide to contest the will.

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Who is able to contest a will?

Once someone passes away, their will comes into effect and their assets are distributed accordingly. If there are issues surrounding the will, anyone can choose to contest this. However, wills are most commonly contested by a child, spouse, cohabitee or another person who has an interest in the estate of the deceased.

A will can also be contested on behalf of someone else. However, this is primarily done on behalf of a minor or someone who does not have the capacity to contest the will themselves. Please note, a party who is acting as a guardian can’t legally exert undue influence over a minor.

Remember, contesting a will is a legal process that can be costly and is not alway successful so it is well worth consulting a Solicitor before starting the process. Our team of claim specialists are available to help provide advice and guidance during this difficult time.

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Key points for contesting a will

You may need to contest a will if you believe it was created fraudulently or through coercion

Contesting a will can be a long and costly process that should not be undertaken lightly

Grounds for contesting a will must be met to proceed

Anyone can contest a will and you may be able to contest a will on behalf of someone else

Hiring a Solicitor when contesting a will is recommended to help you navigate the legal system and to give your claim the best chance of success

2 lawyers discussing a contested will claims case.

Why may you need to contest a will?

Dealing with the loss of a loved one is deeply distressing, and coping with any unclear aspects of their will can be additionally upsetting and confusing. If you suspect that the will doesn’t accurately represent your loved one’s intentions, or if there are concerns about how it was written, you might think about disputing the will.

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What are the grounds for contesting a will?

Lack of Testamentary Capacity

The deceased did not have the mental capacity to make their will, for example, they may not have been of sound mind, they may have been unwell or they may not have understood the process. Different disabilities can also affect someone’s capacity to make a will such as being blind, illiterate, deaf, paralysed or unable to speak.

Improper execution

The will was not executed correctly, for example, there may have been issues with signatures from the deceased or witnesses, there may have been clerical errors or the will may be unclear.

Undue Influence

The person making the will was influenced or pressured, for example, they may have been vulnerable to coercion when making the will and their true wishes may not have been accounted for.

Fraud or forgery

The will was forged or altered making it fraudulent. For example, the deceased’s signature or handwriting may not match their usual writing.

Knowledge and Approval

The person making the will was unaware of or did not approve the will’s contents, for example, if a beneficiary wrote the will in their favour

Proprietary Estoppel

Someone was promised a gift from a deceased person however this was not reflected in the will. They may wish to make a claim in order to access a certain asset or gift.

A woman filling out a contested will claim for her father

If a will is contested, what happens next?

Once you decide to contest a will, the first step is starting a claim. This claim will need to be submitted by a Lawyer or Solicitor to the Probate Registry Office (this is referred to as a caveat).

Following submission of a formal claim, a probate cannot be issued and the distribution of assets is frozen. A caveat generally lasts 6 months, although this can be extended.

Will disputes are often resolved outside of court but in more complex cases and where the parties cannot reach an agreement, the claim will go to court. Finally the claim will be resolved and probate can be issued.

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How can a solicitor help me?

Contesting a will is never a straightforward matter and should only be undertaken after careful consideration. As contesting a will is a legal process, Solicitors play a vital role in helping clients to navigate the complex in and outs. By hiring a Solicitor, you can ensure your claim has validity and you do not waste your time and money. 

Having legal representation also means your claim has the best chance of success. Solicitors are there to ensure that your wishes are communicated and accounted for as well as to provide invaluable support and guidance. They often explore different, more amicable avenues such as mediation or alternative dispute resolution, which are more cost effective than going to court.

Below is a summary of the ways a Solicitor can help when contesting a will:

  • Assessment
    • Once you contact a Solicitor, they will carry out an assessment to check whether you have grounds to proceed.
  • Mediation or Alternative Dispute Resolution
    • Your Solicitor may choose to explore less complex routes of resolving your claim to help you avoid costly court fees.
  • Advice and Support
    • A Solicitor can provide up to date legal advice and guidance throughout your claim.
  • Evidence Gathering
    • If you are contesting a will, evidence is vital in proving your case has sufficient legal grounds to proceed. Your Solicitor can help to collect this evidence.
  • Caveat
    • Once your Solicitor is satisfied your claim is valid, they will issue a legal notice or caveat on your behalf.
  • Court
    • Having a Solicitor is essential if your claim goes to court in order to present a strong case to a judge.
  • Expert Witnesses
    • In order to win your claim, it may be necessary to seek testimony from expert witnesses such as medical or forensic experts. Your Solicitor can help to facilitate this.
  • Negotiation
    • Solicitors are experts when it comes to negotiation and can ensure your interests are expressed.
  • Appeals
    • If you are unhappy with the decision of the court, a Solicitor can help you to file an appeal to have your case reexamined.

Other articles about contesting wills

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Who will I be making a claim against?

It really depends on how the will was created, as you may be claiming against a single person or multiple people. Generally you will be making a claim against the will executors and any beneficiaries. 

If your loved one passes away without making a will, you will be claiming against the beneficiaries who received an inheritance.

Costs of contesting a will

One of the most significant considerations when deciding to contest a will are the costs involved. The amount you pay will vary from claim to claim, however, contesting a will is often a costly process as there is a lot of legal work involved.

Depending on factors such as the complexity of the claim and time taken to reach a resolution, the amount you pay may increase or decrease. As an example, a clear case that is resolved quickly will be a lot less costly than a long, complex claim.

There are also various stages involved in contesting a will including; an initial letter, mediation, court proceedings and a trial. Each stage is more costly than the previous stage. Thankfully, many cases (around half) are resolved before proceedings are issued which helps to keep costs down. Please note, the costs may be paid by individual parties, the estate, insurance companies or by the losing party.

If you are considering contesting a will, you will need to budget for different expenses such as legal fees, administration fees, caveat fees, court fees, mediation or alternative dispute resolution fees, expert witness fees and potentially even appeal fees.

How long will contesting a will take?

Contesting a will is rarely a simple process, however, every case is different and the timescale will depend on the complexity of your claim. It is difficult to give an accurate guide on the time needed as there is no set time. In fact, your case could be resolved in a few months, if proceedings do not begin, or it could take years if your claim goes to a full trial. 

Another cause of significant delays is if the will executors or beneficiaries are unwilling to engage and come to a resolution.

Can I contest a will before someone has died?

No, a will doesn’t come into effect until someone passes away so you are unable to contest this prior to death. In addition, that person may choose to amend their will before their death anyway so there is little point in contesting a will before this time. 

An alternative option is to communicate with the person who created the will before their death. This will allow you to amicably resolve any issues you may have.

However, if a Statutory will has been created for someone who lacks the mental capacity to create a will themselves, you may be able to challenge the will prior to your loved one passing away. Contact our legal experts to learn more.

Can a will be contested after probate?

When it comes to contesting a will, we would recommend doing so sooner rather than later as things can become more complicated with time. Having said that, it is possible to contest a will after probate. If you do decide to contest the will, the beneficiaries and executors will be notified and it is likely that the estate will not be distributed until your claim is fully resolved.

What is a ’no contest’ clause?

A no contest clause is a legal term that may be used to give the deceased greater control over their estate. This clause is put into the will to prevent someone from contesting a will following death. 

The no contest clause is usually held against a specified person or asset and allows the person who made a will to prevent someone from claiming something that the will maker didn’t want them to have.

While a no contest clause is often helpful in preventing people from contesting a will, it still may be possible to make a claim. Although, the claim will only be successful if the will is found to be fraudulent or invalid.

If a will is handwritten is it valid?

Rather than typing out a will, some people prefer to have their wishes layed out in a handwritten document. While there is no law that states a will has to be prepared by a Solicitor and cannot be handwritten, this may lead to legal issues with people contesting the will.

The reason for this is due to the ambiguity regarding whether the will is legal and valid. In addition, according to the Wills Act 1837, the will must be signed in the presence of two witnesses otherwise it is not legally valid. 

Using a qualified Solicitor is an excellent way of ensuring that your wishes are carried out following your death and reducing the chance of others contesting your will. If you are considering creating a will, our team of legal specialists are here to provide you with support and guidance at this uncertain time.

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