The process of contesting a will in England and Wales demands that you take several things into account. Namely, you need to take stock at the early stages to understand if the will is valid legally.
You’ll also need to check your own capabilities in handling potentially contentious probate. It won’t be easy with siblings, children, loved ones and all other parties added into the process. Furthermore, you’ll get into the weeds of some rather difficult issues.
- Checking medical records of others (including the deceased party).
- Investigating potential actions of undue influence.
- Alternatively, understanding of what life looks like as a losing party after contesting a will.
Admittedly we have some bias on the matter of what kind of solicitors you should turn to. However, a no-win, no fee Inheritance Experts solicitor specialising in probate registry challenges definitely helps. Below, we’ll walk through elements of the process of contesting a will.
The importance of The Inheritance Act of 1975
For the sake of clarity, the above law’s long name is the Inheritance Provision for Family and Dependants Act 1975. In short, the Act is one of the most important legal documents pertaining to the process. The main thrust: stipulating the validity of a person to bring a claim against an estate.
“the Inheritance (Provision for Family and Dependents) Act 1975 makes provision for a court to alter the distribution of the estate of a deceased person. …To any spouse, former spouse, child, child of the family or dependant of that person. …In cases where the deceased person’s will or the rules of intestacy fail to make ‘reasonable financial provision’.”
If the process goes forth, a claimant alleges the will didn’t make a reasonable financial provision for them. More recently, amendments to the law now account for the rights of civil partners in the process.
So who can undertake the process of contesting a will?
To summarise who has access to make a claim, take note of the following categories below.
- Firstly, direct family members, including children or grandchildren.
- Secondly, a spouse or civil partner can challenge a will.
- Any beneficiaries (for this to occur, a previous will must specifically name the beneficiary in question).
- Any person reliant on the deceased financially.
- A person who expects an item by the late party, but the stipulation doesn’t show up in the will.
- There’s also the matter that any creditor that the late party still owes money to is part of the process.
Essentially, being part of the family, being an ongoing beneficiary, or even a friend clearly helps your case.
What parameters allow you to enter the process of contesting a will?
Here, we’re going to address the four parameters you must meet before you contest a will.
- Firstly, you need to have the legal right to contest the will.
- Secondly, you must have a valid reason or sufficient grounds for contesting the will.
- Third, you’ve made this contesting of the will before the time limit has run out.
- Finally, you must raise sufficient evidence that supports your claim.
Which begs the question: have you met any of these requirements? If so, contact our inheritance specialists as soon as possible. In turn, you can make a challenge before the grant of probate. Probate, remember, means that the will has been proven to be valid.
Some of you will surely ask, What about contesting a will after probate? Yes: it can, and we address it on our Contesting a Will page.
How a solicitor helps you in the process of contesting a will
Your solicitor will work with you so that you understand all areas of the law.
One of the first steps to doing this is to apply for a copy of the death certificate. With that, you’ll have critical legal document information like name and last permanent address for the deceased.
Your solicitor will work with you to build up a strong case in your favour. The process will then move to mediation, and, beyond that, the court system.
What legal grounds allow you to contest a will?
The readers of our blog will note that we’ve written previously in Do I Have the Legal Right to Dispute a Will? Below, we share several legal grounds for contesting a will.
No valid execution of the will
If certain formalities are not met, a will may become invalid. Some include:
- It needs to be in writing (typed or handwritten)
- Additionally, it has the signature of one of two parties.
- Ideally, the testator his or herself, although this may not always be possible.
- Alternatively, another person signs the will in the testator’s presence (complete with his/her direction).
- Moreover, when the testator signs the will, they truly want it to take effect.
- Ultimately, these actions occur in the presence of a minimum of two witnesses.*
No knowledge or approval of the will
This reinforces the above scenario about the need for multiple witnesses.
Accordingly, you can challenge the will over undue influence. The fact is, some parties may exert undue influence over a vulnerable testator. If they’re not sound of mind, this can be an especially sensible set of grounds for a challenge.
Intention is critical when ruling for revocation of the will.
Effectively, a will is invalid if the destruction of the will occurs. There are two key factors in proving this with your challenge.
- First, either the testator or someone in their presence and at their direction destroys the will.
- Additionally, those above parties – in destroying the will – do so in order to revoke the will.
Lack of testamentary capacity
Effectively, this means the will was created and/or amended when the testator was not of sound mind or mental capacity. The issue often arises in cases where Alzheimer’s Disease becomes a factor for the testator. Such a will could be subject to unintended influence.
Above all, it’s critical that you have the evidence to prove a lack of testamentary capacity.
If you seek legal advice to challenge a will, contact The Inheritance Experts today.
More about Will disputes
We offer a wealth of insights here on this blog regarding will disputes and inheritance challenges.
*Additionally, the will must be both signed and witnessed by those parties.