Contesting a Will.

Contesting a Will: Grounds, Time Limits and Procedure.

A person making a will generally has the right to decide who should inherit their estate. A will cannot usually be challenged simply because a relative believes it is unfair or is disappointed by what they have received.

There must normally be a recognised legal ground for disputing the validity of the Will. Alternatively, certain relatives and dependants may be able to claim reasonable financial provision from the estate without arguing that the Will itself is invalid.

These are different types of claims, and different rules, evidence, and time limits may apply. Anyone considering a challenge should obtain advice from a contentious probate solicitor as early as possible.

What Does Contesting a Will Mean?

The phrase "contesting a will" can refer to several different disputes, including:

• Claiming that the Will is legally invalid
• Arguing that a later will exists
• Asking the court to interpret or correct the Will
• Claiming that the estate failed to make reasonable financial provision
• Disputing the appointment or conduct of an executor
• Challenging how the estate is being administered

The correct legal route depends on what is alleged to have gone wrong.

Can a Will Be Challenged Because It Is Unfair?

A will is not normally invalid merely because its terms appear unfair, unusual or unequal.

A person can generally:

• Leave different amounts to different children
• Exclude a child or another relative
• Leave property to friends or charities
• Change an earlier will
• Give reasons for their decisions or remain silent about them

There is no automatic right for an adult child to inherit from a parent in England and Wales.

However, an eligible relative or dependant may still be able to apply for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

What Are the Grounds for Challenging the Validity of a Will?

The Will Was Not Properly Signed or Witnessed

A will must normally comply with the formal requirements set out in the Wills Act 1837.

Broadly, the Will must be:

• In writing
• Signed by the person making it, or by another person in their presence and at their direction
• Signed with the intention of giving effect to the Will
• Signed or acknowledged in the presence of two witnesses who are present at the same time
• Signed by each witness in the presence of the person making the Will

A dispute may arise if the witnesses were not present together, signatures were added later or the person did not intend the document to operate as their Will.

A will is not automatically invalid because a beneficiary witnessed it. However, a gift to a witness, or usually to the witness's spouse or civil partner, may fail.

Lack of Testamentary Capacity

The person making the Will must have had sufficient mental capacity when the Will was made.

They must broadly have been able to understand:

• That they were making a will and its effect
• The general extent of their property
• The people who might reasonably expect to benefit
• How the proposed gifts would affect those people

A diagnosis of dementia or another medical condition does not automatically invalidate a will. Capacity is assessed at the relevant time and may fluctuate.

Evidence may include medical records, witness statements, the will writer's attendance notes and information about the person's behaviour and understanding when instructions were given.

Lack of Knowledge and Approval

The person making the Will must have known and approved its contents.

A challenge may arise where someone signed a document without understanding what it said or where suspicious circumstances create doubt about whether the Will reflected their true instructions.

Possible warning signs include:

• A sudden and unexplained departure from earlier wills
• A substantial gift to the person who arranged the will
• A beneficiary being heavily involved in giving instructions
• The exclusion of close relatives without an apparent explanation
• The person being unable to read or understand the document
• Differences between the will and previously expressed wishes

An unusual will is not automatically invalid. The court will examine whether the person genuinely understood and accepted its terms.

Undue Influence

A will may be invalid if the person making it was coerced into making gifts that did not represent their own wishes.

Undue influence requires more than persuasion, emotional pressure or repeated requests. There must normally have been coercion that overpowered the person's independent decision-making.

Direct evidence can be difficult to obtain because the conduct often occurs privately. Relevant circumstances may include:

• The person's age, illness or vulnerability
• Their dependence on the alleged influencer
• The influencer's involvement in arranging the Will
• Isolation from relatives or advisers
• A substantial unexplained change in beneficiaries
• Threats, intimidation or controlling behaviour

Fraud or Forgery

A will may be challenged where:

• The signature was forged
• The entire document was fabricated
• Pages were replaced or altered
• The person was deceived about what they were signing
• False information was deliberately used to secure a gift

Evidence may include handwriting analysis, examination of the original document, electronic records and statements from witnesses or professional advisers.

Fraud and forgery are serious allegations and should not be made without a proper evidential basis.

Fraudulent Calumny

Fraudulent calumny may arise where someone deliberately poisons the will-maker's mind against a potential beneficiary by making allegations they know to be false.

The dishonest statements must have been intended to cause the person to be excluded or receive less from the estate.

It is not enough that a family member expressed an unfavourable but genuinely held opinion.

The Will Had Been Revoked

A later valid will normally revokes an earlier will. A will may also be revoked by deliberate destruction where the required intention is present.

Marriage or civil partnership will usually revoke an existing will unless it was made in contemplation of that particular marriage or civil partnership.

Divorce does not normally revoke the entire Will. Still, a former spouse will generally be treated as having died before the person who made it for gifts and appointments.

Disputes can arise where:

• More than one Will has been found
• The original Will is missing
• A later will may be invalid
• There is uncertainty about whether the Will was deliberately destroyed

Mistakes in the Will

A drafting mistake does not necessarily make the whole Will invalid.

The court may be asked to interpret unclear wording or rectify a will where it fails to carry out the person's intentions because of:

• A clerical error
• An accidental omission
• A failure by the person drafting the Will to understand the instructions

An application for rectification should normally be made within six months of the grant of representation unless the court permits a late application.

Claims for Reasonable Financial Provision

A claim under the Inheritance (Provision for Family and Dependants) Act 1975 does not necessarily challenge the legal validity of the Will.

Instead, the applicant argues that the Will, or the intestacy rules where there was no will, failed to make reasonable financial provision for them.

Who May Be Able to Claim?

Potential applicants include:

• A spouse or civil partner
• A former spouse or civil partner who has not remarried or entered a new civil partnership, subject to any relevant court order
• A person who lived with the deceased as though they were spouses or civil partners for the required period
• A child of the deceased, including an adult child
• A person treated by the deceased as a child of the family
• A person who was wholly or partly maintained by the deceased immediately before the death

Being entitled to apply does not mean the claim will succeed.

What Will the Court Consider?

The court may consider:

• The applicant's present and future financial needs and resources
• The financial needs and resources of the beneficiaries
• The obligations and responsibilities the deceased had towards each person
• The size and nature of the estate
• Any physical or mental disability affecting an applicant or beneficiary
• The relationship between the deceased and the applicant
• Any conduct that it would be inequitable to disregard
• Any other relevant circumstances

A spouse or civil partner can generally seek provision beyond basic maintenance. For most other applicants, including adult children, provision is usually limited to what is reasonable for their maintenance.

Can an Adult Child Contest a Parent's Will?

An adult child may be eligible to make a financial provision claim, but there is no automatic entitlement to inherit.

The court may consider:

• The child's financial position
• Whether the child was dependent on the deceased
• Any disability or special needs
• The length and nature of any estrangement
• The reasons for excluding the child
• The needs of other beneficiaries
• The size of the estate

An independently wealthy adult child may have difficulty establishing a need for maintenance. A financially vulnerable or dependent child may have a stronger case, although the result will always depend on the particular circumstances.

How Do You Begin Contesting a Will?

Obtain Legal Advice Immediately

Do not wait until the estate has been distributed. Once assets have been transferred to beneficiaries or sold to third parties, recovering them may become more difficult and expensive.

A solicitor can identify the correct claim, check the applicable time limit and decide whether urgent action is needed to protect the estate.

Check Whether Probate Has Been Granted

The government probate search service can be used to:

• Check whether a grant has been issued
• Identify the type and date of the grant
• Obtain a copy of the Will after probate
• Obtain a copy of the grant

If probate has not yet been granted. The validity of the Will is disputed; it may be appropriate to enter a caveat.

Obtain the Will and Earlier Documents

Relevant documents may include:

• The original will
• Earlier wills and codicils
• Letters of wishes
• Notes made by the solicitor or will writer
• Medical records
• Financial documents
• Emails, text messages and letters
• Care records
• Evidence of financial dependency

Earlier wills may help identify when and why the person's intentions changed.

Contact the Will Writer

Where a solicitor or professional will writer prepared the Will, information may be requested about:

• Who arranged the appointment
• Who attended meetings
• What instructions were given
• Whether capacity was considered
• Whether the person was seen alone
• How the Will was explained
• How it was signed and witnessed
• Why significant changes were made

Professional files can be important evidence, but they are not automatically released in every case and a formal request may be required.

Notify the Executors

The claimant or their solicitor should usually write to the executors explaining:

• The nature of the proposed claim
• The legal grounds relied upon
• The evidence required
• Any request that the estate should not be distributed
• The proposed next steps

Executors who have been notified of a genuine dispute should take care before distributing the estate.

What Is a Probate Caveat?

A caveat temporarily prevents a grant of probate or letters of administration from being issued.

It may be appropriate where there is a genuine dispute about:

• Whether the Will is valid
• Whether a later will exists
• Which will should be admitted to probate
• Whether the deceased left a will
• Who is entitled to apply for the grant

A caveat must be entered before the grant is issued. It initially lasts for six months and can be extended for further six-month periods.

When Should a Caveat Not Be Used?

A caveat should not be entered to delay the administration of the estate or place pressure on beneficiaries.

It may not be suitable where the Will is accepted as valid, and the only proposed claim concerns reasonable financial provision under the 1975 Act.

Entering a caveat without proper grounds can lead to additional legal costs.

What Happens If a Caveat Is Challenged?

A person seeking probate can take formal steps to challenge the caveat. The person who entered it must then respond within the required procedural period to maintain the objection.

If no effective response is made, the caveat may cease to block the grant.

Where the dispute cannot be resolved, contentious probate proceedings may be required.

What Are the Time Limits?

Time limits vary according to the type of claim. The fact that one claim has no short statutory deadline does not make delay safe.

Financial Provision Claims

A claim under the Inheritance (Provision for Family and Dependants) Act 1975 should normally be issued within six months from the date on which representation was first taken out.

A late claim requires the court's permission, which should never be assumed.

Rectification Claims

An application to rectify a will should normally be made within six months of the grant of representation unless the court permits a later application.

Validity Claims

Claims alleging that a will is invalid do not all have the same short statutory limitation period. However, delay can:

• Allow the estate to be distributed
• Make witnesses harder to locate
• Cause evidence to be lost
• Increase legal costs
• Damage the credibility or practical prospects of the claim

Any suspected validity dispute should therefore be investigated immediately.

Negotiation and Mediation

Many disputes are resolved without a final court hearing.

The parties may negotiate through solicitors or attend mediation with an independent mediator.

Mediation can allow the parties to agree arrangements that a court might not order, including:

• A lump-sum payment
• A transfer of property
• A right to remain in a home
• A trust arrangement
• A variation of the distribution between beneficiaries

Settlement can reduce costs and preserve more of the estate. However, tax, benefits and trust consequences should be considered before any agreement is finalised.

Starting Court Proceedings

If the dispute cannot be settled, court proceedings may be required under Part 57 of the Civil Procedure Rules. These rules cover probate claims, rectification claims and applications under the 1975 Act.

Probate Claims

A probate claim may ask the court to:

• Declare that a will is valid
• Declare that a will is invalid
• Determine which will is the final valid Will
• Require a will to be proved in solemn form
• Revoke an existing grant
• Determine who is entitled to administer the estate

Financial Provision Proceedings

A claimant under the 1975 Act may ask the court to make financial provision from the estate.

Possible orders include:

• A lump-sum payment
• Regular payments
• A transfer of property
• A settlement of property into trust
• The acquisition of property for the claimant

Evidence and Case Management

The court may give directions covering:

• Disclosure of documents
• Witness statements
• Medical evidence
• Handwriting or other expert evidence
• Valuation of estate assets
• Mediation or other settlement steps
• Preparation for trial

Claims involving capacity, undue influence, fraud or forgery can require extensive evidence and may become complex and costly.

Who Pays the Legal Costs?

It is unsafe to assume that the estate will pay everyone's legal fees.

The normal starting point in civil proceedings is that the unsuccessful party may be ordered to pay a significant proportion of the successful party's costs.

The court may make a different order where:

• The person who made the Will caused the dispute
• The circumstances reasonably required an investigation
• A party behaved unreasonably
• A party rejected a reasonable settlement offer
• A claim or defence should not have been pursued

Before beginning proceedings, consider:

• The strength of the evidence
• The likely value of the claim
• The size of the estate
• The estimated costs
• The risk of paying another party's costs
• Whether mediation is appropriate
• Available funding or insurance arrangements

Can an Executor Be Removed?

A disagreement with an executor does not automatically justify removing them.

However, the court may consider removing or replacing a personal representative where the proper administration of the estate is being seriously obstructed.

Concerns may include:

• Failure to administer the estate
• Serious conflicts of interest
• Misuse or disappearance of estate assets
• Refusal to provide accounts or information
• Persistent failure to comply with legal duties
• A complete breakdown in the administration of the estate

The court's main concern is the proper administration of the estate rather than resolving personal disagreements between family members.

What Evidence Is Needed?

The required evidence depends on the claim, but may include:

• The original Will and any previous wills
• The will writer's file
• Medical and care records
• Statements from witnesses, relatives, carers and advisers
• Handwriting or forensic evidence
• Bank statements and financial records
• Evidence of gifts or financial support
• Emails, letters and text messages
• Details of the estate's assets and liabilities
• Evidence of the claimant's income, expenditure and needs

Evidence should be preserved as soon as a dispute becomes apparent.

How Can Future Will Disputes Be Reduced?

No will can be made completely immune from challenge, but careful preparation can reduce the risk.

Possible steps include:

• Using an experienced regulated solicitor
• Reviewing the Will after significant life changes
• Recording clear instructions and reasons for unusual decisions
• Obtaining medical evidence where capacity may later be questioned
• Meeting the solicitor without beneficiaries present
• Following the signing and witnessing requirements carefully
• Considering the financial position of dependants
• Keeping the original will secure
• Telling executors where the original is stored

A separate letter may explain why a person has excluded or treated beneficiaries differently. However, it should be prepared carefully. An inaccurate, hostile or unnecessarily detailed letter may create further grounds for dispute.

Speak to a Contentious Probate Solicitor

Seek legal advice promptly if:

• You believe a will is invalid
• You have been excluded from an estate
• You were financially dependent on the deceased
• An executor is about to distribute disputed assets
• You have received notice concerning a caveat
• You are an executor facing a claim
• There is disagreement over which will is valid

A contentious probate solicitor can identify the appropriate claim, protect important deadlines, obtain evidence and advise on negotiation, mediation and court proceedings.

Disclaimer: Solicitors.com is not a firm of solicitors. Content on this site is provided for general information about the law of England and Wales and is not legal advice. Different rules and procedures apply in Scotland and Northern Ireland. You should obtain advice from a regulated solicitor about your particular circumstances. Although we aim to keep information accurate and up to date, succession law and court procedures can change. Use of this site does not establish a solicitor-client relationship.

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