When you’ve lost a family member and you need to sort out their affairs, it’s never easy. There’s a lot to think about. So when it comes to their will, if you’ve got concerns about the way it was put together, or how assets have been shared out, you might decide to challenge it. This is known as ‘contesting a will’ in legal terms, and it’ll need to be handled by a solicitor who specialises in an area of law that’s called ‘contentious probate.’
To give you an idea of whether contesting a will is the right option for you or other family members, we’ve outlined the basics for you below.
Who can contest a will?
You can contest a will if:
- You’re a beneficiary of the will
A beneficiary is someone who is named in a person’s will and who’ll benefit from it. This benefit is usually in the form of receiving money, property or possessions.
- You were financially dependent on the person who died e.g. their partner, spouse, civil partner, child or grandchild
- You were promised an inheritance (a gift) from the person who died (this could be an individual person or an organisation)
- You were mentioned in a current or previous wilL
It’s always worth checking your circumstances with a solicitor if you’d like to contest a will to see whether you have the legal right to make a claim. If the person who died lived in England or Wales, you can find a solicitor on The Law Society’s website here. If they lived in Scotland, you can find one on The Law Society of Scotland’s website here or if they lived in Northern Ireland, you can search The Law Society of Northern Ireland’s website here.
Grounds for challenging a will
It can be a big decision to challenge or ‘contest’ a will. Legally there are 4 reasons why you can challenge a will. These are:
Lack of proper formalities
This means the correct legal process wasn’t carried out when the will was created and signed, making it invalid. You might hear this called a ‘lack of valid execution’ in legal language. This situation can sometimes happen when DIY wills aren’t witnessed properly.
Lack of capacity
This means that the person who passed away didn’t understand the will or didn’t have the mental capacity at the time to agree to what was in it. For example, if the person had a serious worsening condition such as Alzheimer’s which might have affected their ability to put the will together.
It’s important to note though that just because someone had a condition such as Alzheimer's that it doesn’t automatically mean you can use this as grounds for challenging a will. You’ll need to prove their condition at the time and how it affected their understanding of putting the will together. A solicitor will be able to help you with this.
Lack of knowledge and approval
This is when the person who died wasn’t aware of the contents of the will.
This may sound unusual but there are cases where a beneficiary has put together a will for someone who was vulnerable and simply asked them to sign it. For example, a large gift might’ve been left to that beneficiary and this could seem suspicious to you or others.
Fraud or undue influence
This could mean that their signature has been forged or it could mean that the person who died was pressured into making a will that they didn’t agree with. These are serious accusations that will need further investigation and are often difficult to prove.
If any of the situations above sound similar to your own, you may have grounds to challenge a will. Keep in mind that it’s best to ask a solicitor to confirm this for you, and make sure you have the evidence you need before going ahead.
Time limit for challenging a will
Technically there’s no strict time limit for challenging a will. But it’s best to do it as soon as possible because challenging a will after probate has been granted is more complicated and will cost more. It’s a good idea to check your situation with a solicitor straightaway though in case there’re any legal rules that do mean there’s some kind of time limit to know about.
If you don’t challenge the will until after inheritance has been shared out it becomes even more difficult. So, if possible, it’s always sensible to challenge the will as soon as you’re aware of what it includes.
How do you get a copy of the will before the process of probate starts?
Before a grant of probate is issued, only named executors in the will can view it. Once probate is issued the will becomes a public document so anyone can apply to the Probate Registry to view it, and you can find out more about this on the Gov.uk website here.
A named executor is the person, or people, who is or are legally responsible for sorting out someone’s will.
How to contest a will in the UK
When it comes to contesting a will in the UK the process will depend on the reason why you’re making the claim. We’ve broken this down for you in steps below, so you know what to expect from the process.
Enter a ‘caveat’ to the Probate Registry
If you and your solicitor believe that the will isn’t valid then you can enter a caveat to the Probate Registry. This stops the grant of probate being issued, and no inheritance or assets can be shared out until the issue is resolved or the caveat is lifted. The caveat can stay in place for 6 months or until the dispute is sorted out, although it can keep being extended by 6 months if needed.
Send a letter to everyone involved with the will (executors, beneficiaries)
Before any court proceedings begin your solicitor will advise you on what’s known as ‘pre-action protocol.’ They’ll put together a letter for the executor and beneficiaries of the will, and anyone else involved, telling them that you intend to challenge the will. This letter will outline the grounds for contesting the will as well as talking about the evidence you have to support your claim. The letter will also invite those involved to come to an early agreement, known as a settlement, outside of court. It’ll also ask them to reply within 21 days saying whether they accept the claim or not. If things can’t be settled, then the claim will have to be taken to court.
Go through court proceedings
Your solicitor will then take you through the next steps to bring your claim to court. This process usually starts by submitting a claim form, details of the claim, and any evidence that’s relevant. The other party or parties must then file their defence within 28 days. After this, the court will let you know how your claim will be dealt with. A date will be set for the trial and a judgement will be made once the judge decides what should happen with the will.
How much does it cost to contest a will? And who pays for it?
The cost of contesting a will depends on whether the dispute can be sorted out early on. If your claim has to go to court you’ll pay more in solicitors’ fees. The process of contesting a will, even if it doesn’t reach court, can take months, even years, so it’s important to consider that you won’t know what the total costs will be before you make a claim.
Some people might think that the estate left behind in the will can cover the costs. But this isn’t always the case. The court will make the final decisions as to whether any of the estate should be used or if the losing party should cover the costs of court proceedings. The outcome is never guaranteed, and neither are your costs being covered, so it’s important to think seriously about whether the value of the estate is worth fighting over in the first place. Your solicitor will be able to guide you on this, and also talk to you about different ways of funding the costs of contesting a will.
Disclaimer: The contents of this article is intended as information only and does not constitute legal advice. Always seek advice from a specialist solicitor when you need support with wills and probate.
