Families seem to disagree more and more with the Will or Intestacy Rules (they apply if there is no valid Will) when someone dies, but does it make sense to do anything about it? Can a Will be contested? Yes it can, but there are time limits and serious risks. There are all sorts of reasons people may decide to contest a Will, but the earlier you challenge a will, the better, and you may save tens of thousands of pounds. No one really wants the main winners to be the lawyers! Once Probate has been granted, you can still challenge a Will, but a six-month time window is on the way to closing, after which it is less likely that your claim will even be considered. Just email details in the form at the foot and we’ll contact you for a quick informal chat. Or give us a call on 03 300 102 300. Some reasons for the probate to become contentious (contentious probate is the trade jargon for disputing the estate in the UK). It is dangerous territory to stray into with no advice or an inexperienced firm. Sometimes there isn’t really a dispute, as the changes can be agreed – see Deed of Variation. If there is no agreement, read on and find out how to challenge a Will or intestacy… (our disputed probate enquiry form is at the foot of the page.)
Can I dispute a will?
Here are some of the grounds for contesting a Will in England and Wales (please bear in mind this site covers issues in England and Wales – the law north of the border is totally different and in NI slightly different):
Contesting a Will as you have unreasonably been left out of it.
A classic example would be a husband leaving a wife penniless – quite apart from the next heading, it is on the face of it quite unreasonable!
Contesting a Will under the Inheritance Act.
Wives, husbands and sometimes others may be entitled to expect reasonable provision under the Will. So might anyone who has been financially or otherwise looked after by the deceased. So if you provided rent free accommodation for your old Nanny, and left her exposed to be thrown out onto the streets, she might have a case. Similarly obviously young children, maybe mistresses or whatever the male version of that is. Children have no automatic right to inherit however. See Ilott v Mitson. We’re often asked if a step child can challenge a Will, and there is no reason why they can’t, given the right grounds. Equally, leaving a person you have habitually provided for during your life – disabled child, common law spouse, mistress etc could potentially lead to a justified claim. Not that it is generally straightforward!
Challenging a Will through Lack of Mental Capacity.
Contesting a Will under these circumstances is common. In effect what you need to prove is that the person making it did not have enough understanding of what they were doing to be capable – under Law – of making a legally valid Will. This is ONLY at the time the document was made and signed, a subsequent decline in mental capacity would not affect the validity of the document, though other issues might. It is far from easy to prove.
Disputing a Will because of Undue influence.
One of the commonest reasons to contest a Will. What you need to be able to show is that someone has wrongly influenced the person making it (the “Testator” to their benefit or to the benefit of another person. Undue influence is not easy to prove in general. However, where the person allegedly doing the influencing is a person on whom the testator (person whose Will it was) is very dependent then it is perhaps easier to convince the Court. In some cases the burden of proof may actually be reversed especially where the person concerned is a carer.
Contest a Will by Alleging Duress.
Another common reason for disputes. Where a Will is made “under duress” it means that the person was effectively forced to make it under threat of some sort – real or perceived. An example would be a beneficiary threatening to put the testator into a care home unless they leave them their cash! Surprisingly often, solicitors allow a beneficiary to be in the room when a Will is discussed, which could easily amount to “undue influence” as it is hard to disappoint someone who is in the room with you. Potentially useful grounds to challenge if proof is available.
Contest a Will or Intestacy because the Executor is behaving improperly..
There are plenty of executors or administrators who deliberately or otherwise do not follow the law when it comes to distributing to the correct beneficiaries, prefereing to keep the money themselves. Or maybe sell a property well below market value, possibly to a friend, or maybe on the advice of a les than honourable estate agent. Valuables often vanish – but sometimes the valuables are not actually valuable, and a bit of openness would have prevented there from being a problem. The trouble is that executors don’t have to keep beneficiaries or possible beneficiaries informed. Right at the end, the actual beneficiaries should receive an account of what has been paid out and brought in, but it may not be too accurate. This is a really dificult area, and often does lasting damage to family relationships, even once the executor discovers they have been at fault. But it is best to raise the issues early.
Wrongly witnessed Wills are generally invalid….
You can contest one on the basis that the formalities of signing it were not complied with – for example, the witnesses were not both present at the same time with the testator when they signed the Will. This is a complex area as people fail to follow the very simple guidelines, and the Courts are called upon to decide if enough has been done to make it valid – or not.
Challenging a Will due to Promissory Estoppel
A classic example of this is the farmer who uses a child as cheap labour for years on the basis that they will inherit the farm, then leaves it to someone else. In effect, a contract exists between the farmer and the child that in return for cheap labour, the child will inherit the farm (or whatever it is.)
Another Will found –
People are very careless with their legal planning affairs (if you don’t want to be, we suggest you visit this site to avoid your will being contested!) Each successive new Last Will and Testament normally cancels the previous one automatically, but often people forget where the old one is kept (and indeed the current one) so the wrong one may be found initially. So one set of executors may in all innocence try to obtain probate on an old one. When the correct one turns up later, then there are grounds for contesting a dispute, clearly!
Has it been invalidated?
This can be a reason to contest a Will. The commonest issue is that the Will has been cancelled by a subsequent marriage as it was not (clearly) made in expectation of that marriage. People can live together for years, having made their Last Wills in the early days – then get married, which will usually cancel them. If the Wills are not brought back to validity by way of a codicil reviving them, then the Rules of Intestacy may well apply and have a quite different result from that intended. Foreign Wills often accidentally cancel UK ones and vice versa.
Will destroyed – could it still be valid?
Just because a Will has been destroyed does not necessarily mean it is no longer valid! There have been cases where Wills have been shredded, thrown into the rubbish and they have remained legally valid, though often not without contesting the Will or intestacy which would otherwise have been brought into effect. Best not to do that though, as the presumption is that it was destroyed deliberately by the testator. We recommend the Peace of Mind Service for greater security, reviews and knowing when updates are needed and avoiding the situation where crucial documents are missing.
How to challenge a Will or Intestacy – if it makes sense to do so?
Like most things, you can contest a Will without professional help. However, contentious probate is a very complex process and it can end up being pretty personal and vicious too. If you get it wrong, it is very easy to end up paying the other side’s costs, even if you win! Most people would prefer to make it less personal by employing an experienced contentious probate lawyer. Keeping the family together should always be a consideration – people are raw and do not always react reasonably when anyone challenges a Last Will and testament.
However, contesting a Will is sometimes a complete waste of time as it can bankrupt the estate or the person the Judge considers does not have a well thought through claim to challenge a Will. So we recommend that you pay for a professional review before you waste (potentially) tens of thousands of pounds or more with little prospect of success.
Who pays if a Will is challenged?
Who pays for the process is not straightforward, thought it is within the Judges decision if it goes to Court. The Judge will weight the decision and award costs as he or she things fit, so even a winner can end up paying costs. A claim which is merely wishful thinking is likely to result in both sides cost being awarded against the wisful thinker, so don’t challenge a Willin Court just beacuse you think it is unfair – that is not in itself a ground for succesfully contesting a Will.
Contentious Probate Solicitors near me.
This is a common search, but be aware that many solicitors are not probate experts, and very few are expert on contentious probate. It really makes very litte difference these days where the firm is located; that is why were are fussy about the firms we introduce you too.
No Win No Fee Contentious Probate Solicitors.
The costs can be very high, so no win no fee solicitors will only accept very good claims, and for a sizeable amount. So the claim would normally have to be worth £100,000 plus. we are happy to take the details and pass them on to one who may consider taking it on for you.
Can I challenge a Will after Probate has been granted?
Many will changes arise after probate has been granted, for the simple reason that the facts are often unknown before that as the executors chose not to make full details of how the estate is to be distributed. But the document becomes public property after the grant, and anyone can download a copy of both the Last Will and Testament and the Grant. But there is a time frame of 6 months in which claims are expected to be made from when the Grant is issued. Claims after that time may not be considered unless a Judge can be convinced there is a good reason for the late application, so it is as well to put in a standing search for the copies. But always remember that not every estate requires probate, so just waiting for it to be issued may be a waste of time.
Contact us to discuss a formal review before you decide to contest an Estate– spend a few pounds to potentially save far, far more. NO OBLIGATION enquiry form.