How To Challenge a Will

How Do I Challenge a Will?

Need to know how to challenge a will? This guide is for you. We’ll cover valid legal grounds like lack of testamentary capacity and undue influence, and take you step-by-step through the legal process, from initial preparations to court proceedings.

Key Takeaways

Challenging a will in England and Wales requires understanding the valid grounds of contestation, which include lack of testamentary capacity, undue influence, fraud/forgery, lack of knowledge and approval, and invalid execution.

Specific time limits apply to will contestation claims, such as a six-month limit for claims under the Inheritance (Provision for Family and Dependants) Act 1975, while other claims may vary, making prompt legal advice essential.

Contesting a will can be financially burdensome and complex; exploring various funding options like Legal Expenses Insurance and No Win No Fee agreements, and considering alternative dispute resolution methods over court proceedings can mitigate costs and expedite resolution.

Understanding the Grounds for Contesting a Will

Challenging a will requires an understanding that not all disagreements or disappointments constitute valid grounds for contestation. In England and Wales, individuals have the freedom to leave their estate to anyone they choose, without being obligated to include their spouse, children, civil partner, or other dependants. However, there are specific circumstances under which a will can be legally challenged.

The grounds for contesting a will generally fall into two categories: the validity of the will itself and the provision of ‘reasonable financial provision’ for family members or dependants. Within these categories, there are five common grounds for contesting a will:

Lack of testamentary capacity
Undue influence
Fraud
Lack of knowledge and approval
Invalid execution of the will

Each of these grounds requires different types of evidence and legal arguments to prove in court.

A comprehensive grasp of these grounds is necessary for an effective challenge to a will. One should bear in mind that challenging a will is a complex process, where success hinges on the strength of the presented evidence and the particular circumstances of the will’s creation. In the following sections, we’ll delve deeper into each of these grounds, exploring what they mean and what it takes to prove them in a legal setting.

Lack of Testamentary Capacity

Testamentary capacity, which is closely related to sufficient mental capacity, is a crucial concept in will creation and contestation. It refers to the mental ability required for a person to make a valid will. To have testamentary capacity, a person must:

Mental illnesses or brain injuries at any age can result in the loss of testamentary capacity. Common issues that may affect testamentary capacity include conditions such as Alzheimer’s disease, dementia, and severe memory loss, which can lead to lost mental capacity. If a will is made or changed without the testator having the required mental capacity, it can be deemed invalid. When challenging a will on these grounds, gathering medical records of the deceased can provide critical evidence.

Remember that it’s wise to avoid a person making changes to a will or drafting a new one without a capacity assessment, particularly later in life, to avert possible challenges.

Undue Influence

Undue influence is another significant ground for contesting a will. This occurs when someone interferes with the creation of a will and exerts pressure to change it against the individual’s wishes. It’s a serious allegation that suggests the testator’s true intentions were overridden by manipulation or coercion from another party, which may be considered actual undue influence.

Proving undue influence can be challenging, as it requires high-standard evidence with no other reasonable explanation for the terms of the will. Tell-tale signs of potential undue influence include:

While the law doesn’t automatically presume undue influence when one person in a position of trust receives assets from another, recent case law suggests courts are becoming more willing to accept arguments of undue influence. Collecting witness statements from those present during the will’s signing can be crucial in establishing whether testamentary capacity undue influence was exerted.

Fraud and Forgery

Fraud and forgery represent some of the most serious grounds for contesting a will. These issues can render a will entirely invalid if proven. Fraud in the context of wills can involve the creation or alteration of documents with the intent to deceive, while forgery specifically refers to the falsification of the testator’s signature or the entire document.

Suspicions of forgery may arise if the signature on the will doesn’t match other known signatures of the testator. In such cases, handwriting experts may be called upon to identify differences in the testator’s signature and provide evidence of forgery. It’s worth noting that forgery of a will is a serious criminal offence, judged under the Forgery and Counterfeiting Act 1981, with penalties that could include up to 10 years in prison.

Considering the seriousness of these allegations and possible consequences, it is imperative to gather robust evidence before pursuing a claim on these grounds.

Lack of Knowledge and Approval

For a will to be considered legal, the testator must understand and approve its contents. This requirement, known as knowledge and approval, is essential for a will’s validity. It ensures that the will truly reflects the testator’s intentions and wasn’t created or altered without their full understanding and consent.

Issues of knowledge and approval can arise in various situations, particularly when the testator has conditions such as blindness, deafness, or illiteracy. The court may become suspicious if there are radical changes to previous wills, errors in the document, or if a beneficiary took an active role in the will’s instructions. In such cases, the court must be satisfied that the testator understood and approved the contents of their will, especially under suspicious circumstances. If it can be proven that the testator did not properly know or approve the contents of their will, it may be declared invalid.

Invalid Execution of the Will

The valid execution of a will is governed by specific legal requirements set out in Section 9 of the Wills Act 1837 for England and Wales. These requirements are designed to ensure the authenticity and integrity of the will. A will must:

Failure to meet these requirements can lead to what’s known as a ‘want of due execution,’ which is a ground for contesting a will. It’s important to note that while witnesses are not required to read the will, their role is to confirm the testator’s signature. Interestingly, while a beneficiary or a beneficiary’s spouse can act as a witness, doing so will void the gift to them.

During the assessment of a will’s execution validity, looking out for any possible clerical errors or mistakes from the signing process is recommended. Consulting a will writer can ensure these issues are addressed.

Who Can Contest a Will?

While technically anyone can challenge a will, there must be a good reason to do so, and certain individuals are more likely to have valid grounds for contestation. Family members are the most common group to contest wills, including:

This can even extend to adult children who were financially supported by the deceased. Importantly, someone who was financially dependent on the deceased can also contest a will, even if they’re not a direct family member.

Potential claimants who can contest a will include:

Notably, even executors named in the will are entitled to contest it. Ultimately, anyone with a beneficial or potential beneficial interest in the deceased’s estate can contest a will, but they must have valid grounds to do so.

Time Limits for Contesting a Will

In the realm of challenging a will, time plays a crucial role. The specific time limits for challenging a will can vary depending on the nature of the claim, but in all cases, it’s crucial to seek legal advice as soon as possible. This urgency is particularly important because contesting a will after probate has been granted is generally more difficult, time-consuming, and costly.

For claims under the Inheritance (Provision for Family and Dependants) Act 1975, there’s a strict time limit of six months from the date of the Grant of Probate or Grant of Letters of Administration. In certain limited probate actions, mainly those brought by beneficiaries, the time limit to bring a claim extends to 12 years. However, for claims challenging the validity of a will, there’s generally no fixed time limit. Despite this, it’s important to note that significant delays can lead to the court dismissing the claim if it’s deemed frivolous or an abuse of process. Therefore, acting promptly is always advisable when considering contesting a will.

Challenging a will can carry substantial financial implications. Cases can last anywhere from 12 to 18 months, and the costs may amount to many thousands of pounds, potentially exceeding the value of the estate itself. However, most disputes are settled out of court to avoid high costs. If a will is successfully challenged, the presumption is that the costs will be payable by the estate.

How Much Does It Cost To Contest a Will?

The cost of contesting a will can vary widely. Initial legal costs can range from £500 to £1,500 plus VAT if the will is deemed invalid after an initial letter, potentially escalating to tens of thousands of pounds if the case goes to court. It's crucial to have a discussion about potential costs with your solicitor and consider funding options.

It’s important to note that if a case is unsuccessful in court, you may have to pay some of the other party’s legal costs in addition to your own.

Conversely, if a person is unsuccessful in contesting a will, they may be required to pay their own costs as well as the winning party’s costs. Given these potential financial risks, it’s crucial to carefully consider the strength of your case before proceeding with a will contest.

Costs Involved in Contesting a Will

Contesting a will can be a costly endeavour, with expenses varying based on the case’s duration and the level of cooperation from the other party. The potential costs include:

Funding Options for Legal Fees

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Considering the possible costs tied to challenging a will, it is vital to explore diverse funding options. Fortunately, there are several avenues available to help manage the financial burden of legal proceedings. These can include:

Legal Expenses Insurance, often included in home buildings or contents insurance policies, can be a valuable resource. This type of insurance is designed to cover the costs of bringing a claim and can offer indemnity against adverse costs orders. No Win No Fee agreements, decided on a case-by-case basis, generally mean you don’t have to pay legal fees if the case is unsuccessful. Under a conditional fee agreement (CFA), legal fees and expenses are payable only in specified circumstances, typically if the case is won.

For those opting for private funding, invoices for fees are typically sent monthly. Alternatively, Payment on Conclusion agreements allow for fees to be paid at the end of the case if it’s successful. These various options provide flexibility in managing the financial aspects of contesting a will, allowing individuals to choose the most suitable approach for their circumstances.

Steps to Take Before Contesting a Will

Prior to launching into the challenge of a will, undertaking several vital steps can significantly sway the result of your claim. First and foremost, it’s essential to seek expert legal advice by consulting with a specialist will dispute solicitor as early as possible. The complex and time-sensitive nature of will disputes makes expert legal advice invaluable. A qualified lawyer can help you understand the merits of your case, guide you through the legal process, and advise on the best course of action.

Another important step is to conduct a Certainty Will Search. This search can determine if a will exists and if the correct one is being used to distribute the estate. The results of this search could potentially alter the circumstances of your dispute, providing crucial information that might strengthen or weaken your case. Additionally, if you’re looking for a contentious probate solicitor in your area, the National Will Register offers a postcode search feature to help locate nearby specialists.

Taking these preliminary steps can help you build a stronger case and make more informed decisions about whether and how to proceed with contesting the will.

Including a No-Contest Clause

Including a no-contest clause in a will can act as a deterrent to potential challengers. A no-contest clause, also known as an "in terrorem" clause, specifies that any beneficiary who contests the will shall forfeit their inheritance. This clause is designed to prevent frivolous or spiteful challenges by imposing a significant financial risk on anyone considering contesting the will. However, the enforceability of such clauses can vary depending on the circumstances and the grounds for contestation.

Here is an example of a no-contest clause:

"I declare that if any beneficiary hereunder shall contest this will or any of its provisions, or shall institute any proceedings to set it aside, then, in that event, such beneficiary shall forfeit their right to any benefit under this will, and such benefit shall be distributed as if such beneficiary had predeceased me."

Starting the Legal Process

Once you’ve decided to contest a will, the first formal step in the legal process is often lodging a caveat. A caveat is a formal notice filed at the probate registry to prevent a grant of probate or letters of administration from being issued. This action effectively puts a hold on the estate administration process, giving you time to gather evidence and prepare your case.

Caveats are typically lodged when there are genuine concerns about the validity of a will. It’s important to note that a caveat remains in force for 6 months unless it is extended or removed.

If the personal representatives of the estate wish to proceed with probate, they must follow these steps:

File a warning form at the probate registry to challenge the caveat.
The person who lodged the caveat (the caveator) must respond by filing an appearance.
An appearance is a document where the caveator sets out their interest in the estate and their reasons for contesting the will.
If the caveator doesn’t respond to the warning by filing an appearance, the caveat will be removed, allowing the probate process to continue.

This initial stage of the legal process sets the groundwork for the dispute and determines whether the case will proceed to further legal action.

Alternative Dispute Resolution

While court proceedings are one way to resolve will disputes, alternative dispute resolution (ADR) methods are increasingly popular and often encouraged by the courts. ADR is particularly effective for probate disputes as it addresses both the emotional and financial aspects involved. These methods, which include:

are generally cheaper, quicker, and more conciliatory than going to court.

Mediation is the most commonly used ADR method for will and probate disputes. One of the key advantages of ADR is that it allows disputing parties to choose their mediator, unlike court proceedings where the judge is appointed. ADR processes are also confidential and typically less stressful compared to court proceedings. Moreover, ADR has a high success rate in resolving disputes. It’s worth noting that parties refusing to attend ADR sessions may face additional costs imposed by the court, highlighting the legal system’s preference for these resolution methods.

Given these benefits, exploring ADR options before proceeding to court can often lead to more satisfactory outcomes for all parties involved.

What Happens During Court Proceedings

Should a will dispute advance to court, comprehending what unfolds during the proceedings is essential. Contentious probate cases are heard in a civil court without a jury. The judge presiding over the case will review all available evidence before making a decision. This evidence can include witness statements, medical reports, and expert testimonies, depending on the grounds for contesting the will.

During the proceedings, each side will present their case, including any evidence of the testator not being aware of the content of the will or evidence of suspicious circumstances, particularly if the claim is based on lack of knowledge and approval. The judge has the authority to make various decisions. For instance, if there’s a minor issue such as an incorrect signature placement, the judge may decide to rectify the will rather than declare it invalid.

The court proceedings can be lengthy and complex, which is why having experienced legal representation is crucial to navigate this process effectively.

The Role of Probate Specialists

Probate specialists assume a vital role in the will contesting process. These professionals are experts in navigating the complexities of inheritance disputes and can provide invaluable support throughout the legal process. Consulting probate specialists early can significantly aid in understanding your rights, assessing the strength of your case, and determining the best course of action.

Contentious probate specialists can:

They can help in legally disputing inheritance arrangements if the existing ones are unsatisfactory, guiding you through the entire process from initial consultation to resolution.

Given the emotional and financial stakes involved in contesting a will, the expertise of a probate specialist can be instrumental in achieving a favourable outcome while minimising stress and potential costs.

Potential Outcomes of Contesting a Will

Understanding the range of potential outcomes is important when challenging a will. The results of court proceedings can vary widely, including validating the will, removing or appointing executors, or declaring the will invalid. If a claim is successful, it might result in the entire will being declared invalid, leading to the estate being distributed as if the will never existed.

However, it’s crucial to note that even if the contesting party is successful, they may not necessarily receive as much as they hoped, as the final distribution will depend on the court’s decision.

In cases of contesting a will, there are several potential outcomes to consider:

• Partial success

• Unsuccessful claim

• Entirely invalid will

These various potential outcomes underscore the importance of carefully considering the strength of your successful claim and potential consequences before proceeding with contesting a will.

How Likely Is Success in Contesting a Will?

The likelihood of successfully contesting a will is generally quite low. Very few cases actually proceed to court each year, and even fewer result in a favourable outcome for the challenger. Courts require substantial evidence to overturn a will, and the process is often lengthy, costly, and emotionally draining. Many claims are dismissed due to insufficient proof or failure to meet the strict legal grounds required.

Additionally, the presence of a no-contest clause can further complicate the process, deterring potential challengers. Given these challenges, it’s crucial to carefully consider the strength of the case and seek expert legal advice before proceeding.

Summary

Contesting a will is a complex and often emotionally charged process that requires careful consideration and expert guidance. From understanding the various grounds for contestation - such as lack of testamentary capacity, undue influence, fraud, lack of knowledge and approval, and invalid execution - to navigating the legal procedures and potential outcomes, each step demands thorough preparation and informed decision-making.

The financial implications, including costs and funding options, must be carefully weighed against the potential benefits of pursuing a claim. Alternative dispute resolution methods offer a potentially less adversarial and more cost-effective route to resolution.

Throughout the process, the expertise of probate specialists can be invaluable in guiding you through the complexities of inheritance disputes. Ultimately, while contesting a will can be a challenging journey, with the right knowledge and professional support, it’s possible to ensure that the true intentions of the deceased are honoured and that justice is served.

Frequently Asked Questions

How long do I have to contest a will?

You generally have six months from the date of the grant of probate to contest a will under the Inheritance Act 1975. For other types of claims, it's advisable to act as quickly as possible to avoid potential issues with the court.

Can I contest a will if I'm not a beneficiary?

Yes, you can contest a will even if you're not named as a beneficiary, but you need to have a valid interest in the estate, such as being a close family member or a creditor of the deceased.

What happens if I win a will contest?

If you win a will contest, the outcome can vary. The will might be declared entirely invalid, in which case the estate would be distributed according to the rules of intestacy or a previous valid will, but you may not necessarily receive what you expected from the estate.

Can mediation be used to resolve will disputes?

Yes, mediation can be used to resolve will disputes. It is often encouraged as it is faster, less expensive, and less adversarial than going to court. Mediation allows parties to work towards a mutually agreeable solution with the help of a neutral third party. Courts look favourably upon parties who have attempted mediation before proceeding to litigation.

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