Contesting a Will

What Does Contesting a Will Mean?

There are two main routes to contest a will: challenging the validity of the document and making a claim for provision (arguing you should receive more from the estate than the will provides). In both cases, there is a complex legal process which requires specialist solicitors.

Who Can Contest a Will?

You must have legal standing to contest a will. Typically, beneficiaries of the will, a previous will, under the rules of intestacy or those who can demonstrate they were intended to benefit will be able to challenge a will’s validity.

Claims for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 can be made by spouses, civil partners, former spouses who haven’t remarried, children, cohabitees who lived together for at least two years, and anyone financially dependent on the deceased.

Common Grounds for Contesting a Will

The validity of a will can be challenged on various grounds including:

• lack of testamentary capacity
• testator lacking knowledge of or not approving the contents of the will
• undue influence (if someone pressured or coerced the deceased into making or amending their will)
• fraud or forgery
• improper execution (e.g. if the will wasn’t signed and witnessed correctly)
• revocation (e.g. if a later will exists or the will was destroyed)

Making an Inheritance Act Claim

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to make a claim if they haven’t received reasonable financial provision from an estate. The standard of “reasonable financial provision” depends on the claimant’s relationship with the deceased. The court considers various factors when assessing Inheritance Act claims, including the claimant’s financial needs and resources, obligations and responsibilities, and the size of the estate. There is a strict time limit for bringing an Inheritance Act claim of six months from grant of probate.

The Process of Contesting a Will

The first step before contesting a will is to gather evidence and obtain legal advice from specialist contentious probate solicitors. To assist with evidence gathering, you may be advised to make a “Larke v Nugus request” to solicitor who drafted the will for information about the circumstances of the will’s preparation.

Another preliminary step that can be taken is to enter a caveat at the Probate Registry, which prevents an application for probate on the estate being granted for a period of six months. The caveat procedure gives a possible claimant more time to gather evidence and, if appropriate, to negotiate a possible settlement.

Any potential claimant should comply with the requirements of the pre-action protocol, including attempting negotiation and alternative dispute resolution before issuing court proceedings.

Time Limits for Contesting a Will

Different time limits apply for different types of challenge. Challenges to a will’s validity are not subject to a strict time limit but are subject to the doctrine of laches. The doctrine of laches means that if the delay causes unfairness (decided at the court’s discretion) then the claim may refuse to intervene.

Inheritance Act claims must be made within six months from the grant of probate, although extensions are possible in exceptional circumstances.

If you are considering challenging a will, it is essential to act quickly and seek legal advice immediately.

The Costs of Contesting a Will

The costs involved in will disputes vary significantly depending on the complexity of each case and the conduct of the interested parties. For cases that go to court, the general rule is that the unsuccessful party pays the other side’s costs but this is at the court’s discretion and will depend on the facts of each case and the parties’ litigation conduct.

Contesting a will can be a costly and time-consuming process and a cost-benefit analysis should be undertaken before issuing any claim.

Can You Contest a Will After Probate?

You can contest a will after probate has been granted, but it can be more complicated to do so than before the grant. For Inheritance Act claims, the time limit is strict; you have 6 months from the grant of probate.

There can be practical difficulties of challenging after probate has been granted, as assets may have been distributed, evidence may be harder to gather and defendants may be less willing to negotiate. For this reason, we would advise anyone considering contesting a will to act quickly.

Evidence Needed to Contest a Will

The evidence needed depends on the type of challenge being brought.

For challenges relating to the deceased’s mental capacity, the following may assist:

• medical records
• GP notes
• witness statements from people who knew the deceased
• expert medical evidence

For undue influence claims:

• evidence of relationship dynamics between the deceased and the alleged undue influencer
• witness statements from people who knew the deceased and/or the alleged undue influencer
• documentation showing isolation or control of the deceased

For fraud and forgery claims:

• handwriting analysis by an expert witness
• witness statements from people who knew the deceased and/or the alleged fraudulent person
• document examination by an expert witness

For Inheritance Act claims:

• financial documentation about the claimant’s needs, resources and dependency on the deceased
• financial documentation about the size of the estate
• evidence of the relationship between the claimant and the deceased, whether documentary or in witness statements

LBMW helps clients gather and present evidence to build a compelling claim.

Alternative Dispute Resolution and Settlement

Most will disputes settle without going to court, whether through negotiation, mediation or another form of alternative dispute resolution (ADR). The court encourages ADR and can penalise parties who unreasonably refuse to engage.

Early settlement has many benefits; it reduces the time, cost and stress involved in the dispute, provides certainty of outcome and can help maintain family relationships.

LBMW takes a sensible but firm approach to disputes, acknowledging that settlement does not indicate weakness – it is often the best outcome. However, where a fair settlement cannot be reached, we are also experienced in taking disputes to court to achieve a better result for our clients.

When Is It Worth Contesting a Will?

There are many factors that determine whether it is worth contesting a will, including:

• the strength of your legal case and the evidence
• the size of the estate and the amounts you could recover
• the costs involved and prospects of recovering them
• your financial position
• the potential emotional toll both for you and for family relationships

LBMW provides honest assessments of the prospects of any claim and undertakes cost-benefit analyses at various stages. We advise against weak claims driven purely by emotion, while reassuring those with strong cases that pursuing a claim is worthwhile.

How LBMW Solicitors Can Help

LBMW is experienced in both challenging wills and defending challenges. We take a compassionate approach to sensitive family disputes, while robustly arguing our clients’ case. We use our strong negotiation skills to explore settlement options, but also have a wealth of litigation experience if court proceedings become necessary.

If you are considering contesting a will, contact us for a consultation.

FAQs

Can I contest a will if I’m not a family member?

Yes, but it depends on the circumstances. For validity challenges, you need to have an interest (e.g. you were a beneficiary in a previous will or you can show you were intended to benefit). For Inheritance Act claims, you must fall within specific categories which generally require a family or dependency relationship, though financial dependency can qualify non-family members in some cases.

How long does it take to contest a will?

Timescales vary considerably from a few months for straightforward settlements to 2-3 years for complex cases that go to trial. Most cases settle within 6-12 months through negotiation or mediation. Acting quickly at the outset can help to achieve a faster resolution.

What happens if I lose a will contest case?

Typically you will pay your own legal costs and the other side’s costs, although the court will exercise its discretion on this. The costs risks of litigation mean that it is important to make a realistic assessment of your prospects and have appropriate funding arrangements in place before proceeding.

Can you contest a will if the person had dementia?

Yes, dementia can be grounds for contesting a will if it affected testamentary capacity when the will was made. You will need medical evidence showing the deceased lacked capacity to understand what they were doing when making the will. It is important to note that dementia does not automatically invalidate a will - it depends on the deceased’s capacity at the specific time the will was executed.

What is a caveat and when should I use one?

A caveat is a notice registered at the Probate Registry which prevents anyone from obtaining a grant of probate. It gives you time to investigate your claim and gather evidence. A caveat lasts 6 months but can be renewed.

What is a Larke v Nugus request?

A Larke v Nugus request is a formal request sent to the solicitor who prepared a will, asking for details about the circumstances of the will’s preparation. The will-drafter should respond with relevant information about the testator’s instructions, capacity, and execution of the will. The information provided can help you assess whether you have grounds to challenge the will, particularly regarding capacity or undue influence.