When losing a loved one and they leave a will, it’s always hoped that the will is legally binding and valid. However, in some cases, it doesn’t happen, and living loved ones, relatives or dependents, may have to contest a will.
Navigating a bereavement can be distressing and challenging enough as it is, but it can be particularly concerning if, during the process, you discover that the deceased’s will doesn’t reflect what you believe were their true intentions. This is why it’s important to understand the process of contesting a will.
At George Ide LLP, our specialist wills and probate solicitors understand the complexities that can come with probate and will disputes. We recommend referring to our contentious probate guide so you can understand more about the common issues and dispute resolution measures concerning disputed wills. This guide outlines the necessary steps to challenge a will in England and Wales, including what you can expect throughout the process.
When Should You Contest a Will?
Before instructing a probate solicitor, it’s important to consider whether you have legal grounds to do so.
You may believe:
- The testator lacked the mental capacity to create a will.
- Someone exerted undue influence or pressure over the testator
- The will was not properly or legally executed
- The will is fraudulent or contains forgeries
- You haven’t been adequately provided for as a dependent
The Legal Grounds for Contesting a Will
There are several specific legal grounds upon which a will can be contested in England and Wales:
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Lack of Testamentary Capacity
For a will to be valid, the testator must have had testamentary capacity at the time of making the will.
Sometimes it can be argued that the person who made the will (the testator) didn’t fully understand the nature of the decisions taken to draft the will, potentially due to a lack of mental capacity. For example, if the deceased lived with dementia or Alzheimer’s disease when the will was made, it could be deemed invalid if their illness had progressed to the point where they did not understand what they were doing, or the effect of their decisions.
As such, the latest version of the will may not reflect their true intentions when they had capacity. Expert medical opinions, reports, or witness statements from reliable people who have observed the testator’s mental state would be required.
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Undue Influence
Vulnerable people are often taken advantage of, such as being coerced into making or altering a will to suit the person who is manipulating them. Such provisions may not have been made of the testator’s own free will. If dependents or loved ones suspect that this has happened, the deceased’s will can be contested on these grounds.
Evidence of vulnerability, dependency, or a dramatic change in the testator’s expressed wishes may need to be consulted.
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Lack of Knowledge and Approval
For a will to be considered valid and legal, the testator must have understood and approved the contents of their will. This is particularly relevant if or when they are considered vulnerable due to disability, illness, or age, or if the circumstances of the will’s preparation were suspicious. If loved ones or family members suspect that the will’s provisions are ‘irrational’ or don’t accurately reflect the testator’s known wishes, then they may be able to contest the will on these grounds.
They may be required to submit evidence of the circumstances of the will’s preparation, statements from the expert who drafted said will, and evidence that the testator understood and confirmed what was presented to them.
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Improper Execution
Wills must meet specific criteria under Section 9 of the Wills Act 1837 to be considered valid. They must be in writing, signed by the testator (or by someone else in their presence and at their direction). The will must also be signed in front of two witnesses present simultaneously, who must sign it also or acknowledge their signature in the presence of the testator.
If wills don’t meet the criteria for what is considered a valid will, or if they are not in writing, not signed, or not witnessed correctly, then they may be eligible for contesting. The original documents or requests must be sought, as will statements from witnesses to the will signing, and expert evidence on signatures, if relevant.
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Fraudulent or Forged Wills
This process involves proving that the will is not genuine, perhaps because it contains forged signatures or because the testator was lied to about its contents. If it’s suspected that the signatures were provided by someone other than the deceased, the will can then be challenged on these grounds. Witness statements and evidence of deception regarding the will’s authenticity will likely be needed in this case.
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Claims Under the Inheritance Act 1975
You may also be able to contest a will and seek provision (under the Inheritance (Provision for Family and Dependents) Act 1975) if you were financially dependent on the deceased at the date of their death, even if you are not due to inherit under their will. Only certain categories of dependents can bring a claim and there are strict timescales which start from the date that any Grants of Probate are issued.
The Steps to Contest a Will
- Speak to a professional contentious probate solicitor
The process of disputing a will can be complicated and it’s vital to understand your specific legal grounds for contesting and compliance with the strict time limits associated with claims. If you suspect that something is not right with the will of the deceased, it’s important to seek legal advice before going further. The contentious probate solicitors at George Ide LLP provide expert guidance tailored to your specific circumstances and will work diligently to achieve a fair and timely resolution to your will dispute.
- Inform the executor(s) of the will
The executor(s) of the deceased’s will should be informed that you plan to contest it before any assets are distributed.
- Gather evidence
Before officially contesting the will, relevant information must be collected, including (but not limited to):
- The death certificate
- A copy of the will (obtained from the Probate Registry)
- Any previous versions of the will, if available
- Medical records (if challenging on the grounds of testamentary capacity)
- Witness statements from relevant people, if needed
- Circumstantial evidence that supports your claim that the will is invalid or unfair
- Issue a caveat
Filing a caveat with the Probate Registry will potentially grant you time to investigate the circumstances surrounding the will’s drafting and execution. This will prevent the Grant of Probate from being issued prior to your enquiries being answered or resolved, effectively pausing the administration of the estate and assets while you prepare your dispute claim.
Caveats last for 6 months, and this is usually sufficient time to pursue a claim and gather evidence, but you can apply for a caveat extension if you require more time. During this time, however, the executor(s) named in the will can issue a warning, which will require you to file an Appearance to the Warning, specifying your exact reasons for extension.
- Resolution
A will dispute case will typically be resolved in one of two ways:
- Either you will come to an agreement with the other parties interested in the estate with or without mediation, or;
- You will take the dispute to court if no amicable arrangement can be reached.
If negotiation, arbitration, or alternative dispute resolution (ADR) is unsuccessful, your solicitor will prepare and issue a claim form at court, accompanied by Particulars of Claim, detailing your case.
What Happens if a Will is Successfully Contested?
If your challenge is successful, the consequences depend on the grounds:
- If the will is declared invalid due to lack of capacity, undue influence, fraud, or improper execution, an earlier valid will takes effect
- If no previous valid will exists, the estate will be distributed according to the rules of intestacy
- In claims under the Inheritance Act 1975, the court may order a redistribution of assets from the estate to make reasonable financial provision for you
How George Ide LLP’s Wills and Probate Solicitors Can Help
To avoid leaving your loved ones with any uncertainty surrounding your will and estate administration, leaving a clear and valid will is important. George Ide LLP’s will writing solicitors can guide you through the process of making a valid and accurate will, which accurately reflects your wishes after you die.
Should you find yourself in the difficult situation of needing to contest a will, our experienced contentious probate team can help you gather and present compelling evidence to build your case, and represent you in negotiations and court proceedings. We can advise on the most cost- and time-effective resolution strategy to achieve a fair and just outcome.
If you believe you have grounds to contest a will, contact our dedicated contentious probate team at George Ide LLP for a confidential consultation to discuss your circumstances and options.
Disclaimer: This guide provides general information about contesting wills in England and Wales. It should not be considered legal advice. Every situation is unique, and we recommend seeking professional legal advice tailored to your specific circumstances.
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