Contesting A Will

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It is a sad fact that even the closest family relationships can be soured by money. When you combine a sense of betrayal or disappointment with the emotion of a bereavement, contesting a will can be a difficult process without the support of a solicitor who specialises in inheritance laws.

The Inheritance Experts advice and represent both beneficiaries who believe they have been overlooked, family members and other interested parties, executors and administrators to successfully resolve contentious will issues while doing our best to protect important family ties.
Here are the answers to some of the most frequently asked questions about contesting a will. If you want more information about any of these topics, or your question is not listed, you can call us to arrange a free, no-obligation consultation with an experienced legal advisor.

Who can contest a will?

Whether you are an executor, it is important to know who does, and does not, have the right to have a say in whether the way the deceased wanted their estate to be distributed is fair and just. Blood relations – that is, direct relatives such as children, siblings or parents – are those who most often contest a will. The Inheritance Act sets it out in more detail, but to summarise, those who can contest a will are:

  • Blood relations.
  • A spouse, whether they were estranged or living together at the time the will was written.
  • A creditor to whom the estate owes money.
  • A person named as a beneficiary in an earlier will.
  • Someone who relied on the deceased for financial support or accommodation.
  • A person promised an item or bequest, either verbally or in writing but which was not
    detailed in the will.

Disinheriting a spouse happens more frequently than you may think. Just because a husband or wife is specifically excluded from a will does not mean that will cannot successfully be challenged. If you are considering adding this clause into your will, or you are a surviving spouse who wants to contest a clause that disinherits them, your best option is to seek legal advice from The Inheritance Experts to find out more about your rights and how to exercise them.

Why do people contest wills?

People contest wills when they feel they have been unfairly treated, or if they feel the deceased was tricked or exploited into leaving their estate to someone who did not deserve it. Deciding to contest a will is, for most people, a matter of principle as much as finance. Either they believe the deceased wishes have been misrepresented in the legal document, or the feel their entitlement has been ignored.

Am I entitled to contest a will?

Anyone has the right to challenge the validity of a will, but only those considered family can claim that he or she was not adequately provided for in the document. You have the right to challenge or contest a will if:

  • You think the will is invalid because the person who signed it was not aware of what they
    were signing because their signature was forged, or for another legally acceptable reason.
  • You were a nominated beneficiary in a former will but have been omitted from the deceased’s last will either with or without your knowledge.
  • You were financially supported by the testator. A typical example of this is a parent who had children with two different partners. They paid regular child maintenance to their former partner, but the event of their death caused these payments to cease. There was no financial provision for their older children’s care in their will, leaving all assets to be divided among their new spouse and children. The first spouse can contest this will based on the fact that they were financially dependent on the deceased.

What are the legal grounds for contesting a will?

A will needs to fall into a specific range of criteria for any challenge to be considered under inheritance laws. These are:

  •  The will being invalid because it was drawn up incorrectly, or signed by witnesses who were not present when the testator signed.
  • The testator lacked the necessary mental capacity to sign a legal document. They need to have full knowledge of the extent of their estate and understand that this is how it will be distributed on their death.
  • The testator’s signature or the contents of the will were forged. Proving forgery can be extremely difficult, and these claims are rarely successful without the support of a specialist solicitor.
  • The testator was under an undue influence or unfair pressure during the creation of the will.
  • The will does not make adequate provision for financial dependents.

The growing number of DIY wills can be directly linked to an increase in the number of wills being contested in the UK. A person who drafts a will cannot legally be a beneficiary, but what about an adult child who helps their ageing parent to do this and also inherits? Acts such as this, which could be completely innocent, can cause the legality of a will to be invalidated and successfully challenged.

Is there a time limit for contesting a will?
The amount of time you have to contest a will depends on the grounds under which you are doing so. These criteria are defined in the Limitation Act 1980. Our inheritance law solicitors always advise those who are considering contesting a will to seek legal advice at the earliest opportunity, and certainly before probate has been issued if at all possible. Once the executor has been granted probate, there is nothing to stop them from disposing of assets as per the will’s instructions.

If a person is claiming under the Inheritance Act, they will need to do so within six months of probate being granted. If you are a beneficiary who believes they are entitled to a larger share of the estate, then you have up to 12 years from the date of the testator’s death to challenge the will. There is no statutory limit for the challenge is made on the grounds of fraud.

How long does contesting a will take?

The time it takes to resolve a challenge to an estate depends greatly on several factors. The first is whether the other beneficiaries agree to the challenge. For example, if a sibling who fell out of favour with a deceased parent is disinherited in their parent’s will, but the other siblings agree that this is unfair and they should be entitled to part of their parent’s estate.

Unfortunately, challenges to a will are rarely accepted by an executor or beneficiary, and months of mediation is required to negotiate an agreement which satisfies everyone involved.

This process can take months and requires the cooperation of all parties. When mediation does not work, a claim will be referred to the Courts who will allocate a date, sometimes 12 months in advance. It is not unusual for complicated challenges to go on for 18 months or even two years.

Your solicitor will take you through the process of challenging a will. The stages include:

  •  Identifying whether you have grounds to contest a will legally.
  • If Probate has not been granted, your solicitor may request a Caveat that prevents the Executor from distributing any of the deceased’s assets which you are challenging.
  • Using a method of Alternative Dispute Resolution, such as mediation or negotiation, to resolve the challenge. If your challenge does go to Court, it will help your case if you can show that you have actively attempted to resolve a dispute.
  • If medication has failed, your solicitor will begin the court process, which involves both sides sharing information with the view of reducing the overall processing time.

These steps are set out by the Association of Contentious Trust and Probation Specialists as an industry guideline to streamline challenges made to wills and reduce the cost and stress involved for all parties.

How much does it cost to contest a will?

It just is not possible to put a generic price on the cost of contesting a will, as every case is unique. Unless all parties are in favour that the challenge is fair, however, it can take months to resolve and, the case goes to court, more than a year. The case of, Branislav Kostic, who challenged the terms of his father’s will all the way to the High Court, cost more than £100,000 in legal fees, although the typical claim is around a tenth of this.
Legal Aid or public funding is not available for people who want to challenge the instructions in a will. Some clients have legal cover to help pay for their legal expenses, often as part of their home or motoring insurance policy. It may be appropriate for you to take out an After the Event policy if you do not have existing cover. We can help you understand your payment options before you make any decision about whether to proceed with your challenge.

Mediation costs are significantly lower, which is one reason it is so important to resolve any dispute out of court where possible and to make very certain you can prove the legal grounds to contest before you begin the process.

Do I need a lawyer to contest a will?

You do not need to hire a lawyer to contest a will. However, it will greatly increase the likelihood of your claim being successful if you have a specialist inheritance solicitor advising and representing you. They can scrutinise the will and identify whether you have legal grounds to challenge it, and give you advice about the best way to proceed. You may need a solicitor or barrister to represent you if your challenge goes to court. Although it may be tempting to avoid legal fees and challenge the will in person, what you save in legal fees could end up costing you your right to a share of the estate and, if your claim is unsuccessful, leave you with the other party’s legal bill to pay.

Can I contest a will on behalf of someone else?

You can contest a will on behalf of someone who is not able to do it themselves. This action is typically taken by parents of minors who have been excluded from the will of an estranged or absent parent. The legal provision to do so is made under the Inheritance (Provision for Family & Dependants) Act 1975, more commonly referred to simply as the Inheritance Act. The process of challenging a will for someone else is broadly similar to if you are the potential beneficiary although, in the case of dependent children, it can be more straightforward and take less time than an adult who is not financially dependent on the deceased contesting it.

Just because it may not appear possible for you to contest a will on paper does not mean it is impossible. For example, a husband divorced his wife after she suffered a series of strokes and was confined to a nursing home. Even though the expense of her accommodation was covered, he voluntarily contributed to the cost of extras such as an additional session of physiotherapy each week. Rather than pay these directly to the care home, he gave his adult daughter cash every month. On his death, it was discovered that he left no provision to continue these payments. Solicitors successfully contested the will on behalf of the man’s ex-wife, demonstrating that she was, to a degree, financially dependent on him for her quality of life.

Can I contest a will if probate has been granted?

You can contest a will if probate has been granted, but it is better to do so before as it will prevent the executor from disposing of any assets that cannot later be recovered. The categories for contesting a will before and after probate remain the same, as does the need for the person challenging the will to prove their right to do so.

Can I contest a will if I am an executor?

An executor is a person appointed by the testator to distribute the assets of the estate according to their wishes. It is possible to appoint more that one executor, and it is also possible for an executor to be a beneficiary of the will. As with a non-executor beneficiary contesting under the Inheritance Act, you must do so within six months of probate being granted. Any executor-beneficiary who is contesting the will should resign from the role as there is a clear conflict of interest. If you do want to renounce the role as executor, then you need to do so before you have undertaken any of the duties associated with the role, and you must do so absolutely.

How can I contest a will based on mental capacity?

If you believe the testator lacked the mental capacity to sign a legal document, that they did not understand what they were signing or the consequences of their actions, then you may have grounds to challenge the will.

Challenging mental capacity for wills made before 1 April 2007 is done under Section 9 of the Wills Act 1837. The same criteria for wills made after 1 April 2007 is done under Sections 1-3 of the Mental Capacity Act 2005. It is necessary for the person contesting the will to demonstrate that the testator was legally unable to make decisions relating to their finances as they were mentally impaired at the time they signed their will.
It is also possible to contest a will if the testator had the mental capacity to sign a legal document but was not aware of the content of the document they were signing. An example of this is a person whose will is written in English but this is not their first language and they do not understand the meaning of all the legal terminology. It may also apply to someone who has a low literacy level, or who is hearing or sight impaired.

I am an Executor of a will that is being contested. What should I do?

As with someone who wants to contest a will, the executor of a will that is being challenged should obtain the advice of an inheritance and wills solicitor as soon as possible. As the executor, your role is to ensure the testator’s assets are distributed as per their wishes set out in their last will and testament. They have nominated you as the person they trust to manage their estate. Such a significant responsibility is not always an easy burden to bear, no matter how close you were to the deceased, which is why many executors engage a solicitor who specialises in inheritance law to help.
It is vital that you get a complete account of the estate’s assets in their entirety. There have been occasions when someone has challenged a will with the belief that he or she is entitled to a particular asset such as property, only to find that the deceased did not own the asset.

Joint bank accounts can be another item of contention as it may be unclear what portion of the account belongs to each of the account holders. Where both parties have contributed equally, the contents of the account pass to the surviving account holder/s regardless of what the will states. However, if the deceased contributed significantly more to the account, then it could be challenged that this forms part of their estate.

There are occasions when assets listed in a will have been given away or sold by the testator.
While they are perfectly entitled to do what they like with their property but there are considerations when it comes to determining whether they remain part of the deceased’s estate.

If a person is contesting the will due to their status as a family member, a solicitor can use the Succession Act 2006 to determine whether the challenge has any merit.

Will I have to go to court if I contest a will?

A good solicitor will always do their best to resolve the challenge to a will through mediation or negotiation. Taking a challenge all the way to court is time-consuming and expensive, but if you believe your claim is just and the other party refuses to budge, then you may be left with no other option but to have your challenge assessed by the Court.
A will contest does not skip from failed mediation to a hearing by a judge. There are pre-action protocols both sides need to complete, and the waiting time for a court date can be up to a year if the courts in your area are particularly busy. You will have to submit a written affidavit in advance of your hearing, and you may be questioned about this to the judge and have it questioned by the solicitor representing the executor. Depending on the complexity of the challenge, you may have a result on the same day.
Courts are typically disapproving of sides who have not made an adequate effort to resolve the challenge out of court, as well as those who delay their actions unnecessarily in an attempt to make the process more difficult.

What do I need to know before contesting a will?

Before contesting a will you need to know whether or not you have the legal right to do so. Always seek legal advice at the earliest opportunity, and certainly before probate has been granted where possible. Every estate, will and challenge is unique and should be assessed by a specialist inheritance solicitor who will scrutinise the will as well as collect and review facts around the claim, including the intentions of the deceased, before giving their expert opinion on whether any challenge is likely to succeed.

 

Find a solicitor who takes the time to understand the dynamics of your family so that they can do their best to help preserve those relationships which are important to you. Remember that just because you have sought legal advice does not mean you now need to act solely through solicitors.
To arrange a consultation with an inheritance law expert, contact us today

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Our areas of specialism include

  • Inheritance Act claims
  • Contested Court of Protection
  • Disputed Wills
  • Estate disputes
  • Caveats
  • Burial disputes
  • Disputes over the identification of beneficiaries
  • Fraudulent Wills
  • Will challenging – Lack of mental capacity
  • Asset and property disputes

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We offer fixed fees for Wills, Probates & Lasting Power Of Attorney. Our Inheritance department covers all aspects of preparing wills and dealing with a person's assets after they have died.

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Our experienced solicitors are experts at dealing with inheritance disputes effectively and efficiently.
We are committed to securing the best possible outcome for you, while providing friendly support every step of the way.

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An example of a successful claim involved siblings who were left orphaned when their father died, their mother having passed away some years earlier. The father left his estate in its entirety the older sibling, cutting the younger from his will entirely without explanation.

In the last year of his life, the father asked the younger sibling, who was single and had no dependents, to move back into the family home so the father would not have to move into sheltered accommodation. The younger sibling took a lower paying job closer to home and did as their father requested, reducing their financial independence in the process. They successfully contested the will on the premise that their father had promised their financial and career sacrifice would be recognised in the distribution of assets when he passed away. The dispute was resolved through careful mediation which ensured the younger sibling received appropriate recognition without damaging the siblings’ relationship.