Your Guide to Contesting a Will

Contesting a Will is a complex and often emotionally charged legal process, typically pursued when there are serious concerns about the validity of a deceased person’s final wishes. This guide outlines who is eligible to contest a Will, the reasons such challenges can be brought, and the practical steps involved.

Can you contest a Will?

You can if there are grounds to do so. If a challenge is successful, it will be set aside and the estate will be distributed in accordance with the previous Will or if there is no previous Will, the estate will be distributed under the rules of intestacy.

If the testator made several Wills, it may be possible to challenge the validity of the earlier Wills, providing that there are sufficient grounds to do so.

The grounds for contesting a Will are:

• Failure to sign and witness the Will correctly. This is called lack of due execution.
• Forgery of the Will or signatures.
• Fraud or deceit including poisoning of the mind against individuals. This is known as fraudulent calumny.
• Lack of testamentary capacity, i.e. an individual was not of sound mind.
• Not knowing and approving the content of the Will.
• Undue influence from a third party.

Separately a spouse, co-habitee, child or any other person who was treated as a dependant may claim that that the Will has failed to make reasonable financial provision for them and request that the court make provision from the Estate.

How do you contest a Will?

If you believe that there are grounds to challenge the validity of a Will, you should enter a ‘caveat’ with the Probate Registry.

A caveat will prevent any application for a grant of probate being processed and it will provide you with an initial period of six months to investigate whether you have grounds to challenge the Will. The caveat can be extended if you require more time to to complete the investigations.

Once you are ready to proceed, a claim needs to be issued in court for a declaration that the Will is invalid.

Who can contest a Will?

To contest a Will, you must have sufficient legal standing. You must therefore either be a beneficiary:

• named in the current Will; or
• named in a previous Will; or
• under the rules of intestacy.

Can you challenge a Will if you have been disinherited?

If you have been disinherited, providing you have the appropriate legal standing, i.e. you are a beneficiary under the current or previous Will, or in the absence of one, you are a beneficiary under the rules of intestacy, you can make a challenge.

Alternatively, if the Will is valid, it may be possible to bring a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”).

The categories of those who can make a claim under the 1975 Act are:

• a spouse or civil partner
• a former spouse or civil partner who has not remarried or registered a new civil partnership (provided a court order was not made at the time of the separation that specifically prohibits them from bringing such a claim)
• any person cohabitating with the deceased as ‘husband and wife’ for at least two years immediately prior to the deceased's death
• a child of the deceased
• a person treated by the deceased as a ‘child of the family’
• any other person who immediately prior to the deceased's death was being maintained by the deceased

There are statutory guidelines the court must take into account when considering a claim under s.3 of the 1975 Act. These are:

• the financial needs and resources of the beneficiaries and applicant(s)
• any obligations and responsibilities the deceased had towards any applicant or beneficiary
• the size and nature of the estate
• any disability (physical or mental) of any applicant or beneficiary and any other matter, including the conduct of the parties

Does financial dependence affect your ability to challenge?

No, it does not, but financial dependency is a relevant factor when assessing a claim for reasonable financial provision under the Act.

If an eligible claimant can demonstrate that they were financially maintained by the deceased during their lifetime, this will support the claim for reasonable financial provision.

The eligible claimant will need to provide evidence to demonstrate financial need and this is usually provided by way of a witness statement with evidence in support.

What should you do if you’re unsure whether you are eligible to contest a Will?

It is important to seek legal advice. A solicitor will be able to advise you if you have the legal standing to contest a Will, and if there are sufficient grounds to do so.

If you are an eligible claimant and there are insufficient grounds to challenge the validity of the Will, a solicitor will consider whether you have sufficient grounds to bring a claim for reasonable financial provision under the 1975 Act.

Can someone named in an earlier Will challenge a newer version?

If you were named as a beneficiary under an earlier Will, you may seek to challenge the validity of a testator’s current Will, if you are either excluded from benefitting under the terms of the newer document or your entitlement is less than under the earlier one.

Are executors or beneficiaries allowed to bring a claim?

It is commonplace for an executor of a Will to also be named as a beneficiary. However, this can place an executor in a position of conflict, as they should remain neutral.

A beneficiary can, however, bring a claim against the estate, either to challenge the validity of a Will or to bring a claim for reasonable financial provision under the 1975 Act.

Where a conflict arises for an individual, between their role as executor and their wish to question the validity of the Will that appoints them, it may be appropriate for them to step down from the role of executor.

Can you challenge a Will if the deceased lived or held assets overseas?

It is still possible to make a claim l if the deceased lived or held assets overseas, providing that the deceased has made a will in this country.

If the deceased has assets abroad, those assets will usually be dealt with in accordance with the law of country where the assets are held. In those cases a claimant may need to seek advice in that country about challenging any Will that was made that deal with those foreign assets.

Can an estranged family member dispute a Will?

It is becoming increasingly common for an estranged family member to challenge or bring a claim for reasonable financial provision under the 1975 Act.

The leading case on this point is Ilott v The Blue Cross [2017] UKSC 17, where the estranged daughter of the deceased was awarded £50,000 out of a total estate of £486,000.

Are adopted children treated differently?

An adopted child is to be treated as a biological child of their adoptive parents (S.39 Adoption Act 1976). Therefore, an adopted child has the same inheritance rights as biological children and an adopted child is entitled to bring a claim for financial provision against a deceased person’s estate under the 1975 Act.

It is also possible for adopted children to claim against their biological parent’s estate if there is sufficient evidence to establish they maintained a relationship with the biological parent and that they are an eligible claimant under the 1975 Act.

An adopted child is also entitled to challenge the validity of a Will of their adoptive or their biological parents. As an adopted child is treated as a biological child of the deceased once adopted under the intestacy rules, if their adoptive parent dies without making a will, the rules of intestacy will apply for their benefit.

Can business partners or long-standing employees bring a claim under the Inheritance Act?

Business partners or long-standing employees are not eligible claimants under the 1975 act and therefore cannot bring a claim for reasonable financial provision unless they can establish that they were either:

• a person treated by the deceased as a ‘child of the family’; and/or
• any other person who immediately prior to the deceased's death was being maintained by the deceased.

How much does it cost to challenge a Will?

The cost of resolving a Will dispute can be significant, and it is important to consider whether the value of the claim is sufficient to justify incurring the legal costs associated with challenging the validity of the will. Costs are a major factor in driving parties to settle disputes as quickly as possible.

We offer a range of funding options which can be viewed by clicking here.

Is there a time limit for challenging a Will?

There is no time limit, however it is sensible to contest a Will as early as possible, and it is usually simpler to do so before the grant of probate has been granted. After the grant of probate has been issued, the executor can begin to distribute the estate in accordance with the terms of the Will.

Whilst it is possible to make a challenge after probate has been granted, it can be a more costly and complicated process. If there is a very significant delay then a court may invoke the doctrine of laches to prevent the validity claim from progressing.

Our Expertise

We have a wealth of experience of acting for clients who are seeking to challenge the validity of wills.

We have had a recent success in acting for a client who sought to challenge the validity of the wills in respect of both his parents’ estates. We were able to negotiate an excellent outcome for our client at mediation.

We have also represented clients who are bringing claims for reasonable financial provision as well as defending claims. We have a proven track record of successfully defending spurious claims brought by estranged adult children and negotiating settlement to avoid the significant costs of and associated with court proceedings.

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