What are the grounds for contesting a Will?
You may be able to challenge the validity of a Will on the following grounds:
- Lack of mental capacity - This may apply if the person who made the Will did not have the mental understanding required to make a Will.
- Lack of knowledge - If the person’s first language was not English, for example, they may not have fully understood and approved the terms of their Will, which could invalidate it.
- Undue influence - If the person was somehow forced or coerced into making a Will by another person.
- Lack of due execution - A Will is invalid if it has not been properly signed in the presence of two or more witnesses and properly executed as required under the Wills Act 1837.
- Fraud - If any part of the Will has been forged, it will be invalid.
If you were financially dependent upon the person who has died, but they made no provision or inadequate provision for you in their Will, you may be able to seek reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975. This also applies to certain relations defined under the Act, such as children or spouses.
Who can contest a Will?
Anybody who has a beneficial interest in the Estate of somebody who has died can contest a Will or bring a claim under the Act if they have legal grounds to do so. This is usually a spouse, child or cohabitee, but it can also include a person (for example, somebody who was treated as a family member).
A Will can also be contested by someone mentioned in the Will or mentioned in any previous Wills, provided they have a valid legal claim.
Can a claim be made after probate, or is there a time limit?
The time limit depends upon the type of claim you make. It is vital to talk to a solicitor as soon as you consider contesting a Will as different rules apply to different cases.
If you decide to make a claim for financial provision under the Inheritance (Provision for Family and Dependents) Act 1975, you have 6 months only from the date of Grant of probate to issue a claim at court. There are circumstances in which this time limit does not apply, and our solicitors can explain that to you.
Should you wish to contest the validity of a Will, there is no time limit. However, we strongly advise acting as swiftly as you can. It is much more challenging to bring a claim after probate has been granted, particularly if the Estate has been distributed to the Beneficiaries.
Does the dispute need to go to court?
At Davisons, we strongly believe in resolving estate disputes through Alternative Dispute Resolution (ADR) whenever possible. Going to court should be a last resort, particularly when dealing with Estate matters. ADR involves mediation and negotiation between parties, which is cheaper, and issues are typically resolved far more quickly than through court. This means everybody can move on and grieve for the person they have lost.
We find ADR is usually effective in helping most people to reach a mutual agreement. However, sometimes when an agreement cannot be reached, it is necessary to go to court.
Our contentious probate solicitors can act for Claimants or the Estate and will provide specialist advice and support to you at every step.
How long does it take to challenge a Will?
Every case is different, and there are a range of factors to take into consideration. Some disputes are resolved quickly through mediation, but others continue to court, which can be a lengthy process.
At Davisons, we can give you an estimated timescale at the outset, which will depend upon the circumstances of your case.