Family Law Guide

Guide to contesting a will

Guide to contesting a will

When a will is made public, it can contain some upsetting surprises for people who believe they should receive a bequest, but for whatever reason have been left out of the will, or have received much less than they expected. A solicitor can assist either the person wishing to bring a claim or the personal representatives of the deceased in defending a claim. This includes advising on the steps to take before going to court, and how you follow the correct protocol to maximise the chance of success and avoid cost penalties.

Who can contest a will?

If you were a beneficiary under a previous will that has been changed unexpectedly without the knowledge and approval of the deceased you may have a claim. If you believe that someone exerted undue influence, whether this is physical or psychological, on the deceased to sign their last will, whether a relative or carer, you can question the validity of the will. You do not need to be a relative of the deceased to contest a will.

Reasons for contesting a will

There are a number of other reasons for contesting a will including:

a) Lack of testamentary capacity – the deceased did not have sufficient mental capacity when he/she made the will;

b) Someone else claims the deceased did not have sufficient mental condition when he/she made the will such that they did not know or approve of its contents, which means you risk either receiving nothing or having a reduced share of the estate;

c) The deceased was manipulatively influenced or coerced into making a will that ordinarily would have been different;

d) An error was made in the writing of the will and you want to prevent the inappropriate division and distribution of the estate;

e) Someone else claims that there’s a problem with the will and a caveat has been submitted which prevents the personal representatives from obtaining a grant of probate or letters of administration and making a distribution, which you would like to be rescinded;

f) The estate is not being suitably divided and/or you suspect the Executor of dishonesty;

g) The will contradicts pre-established promises made concerning the relevant property, so that the will does not reflect the earlier agreement whether written or oral.

When to contest a will

Each case is different; the merits of bringing a claim to contest a will are based on the facts and the strength of the evidence supporting the claim. The procedure for investigating the claim is well established, and must be followed before you bring a claim in court. This will include obtaining the deceased’s medical records, and speaking to any other relevant witnesses.

Time limits for contesting a will

If you wish to contest a will you need to act quickly, you do not need to wait for the grant of probate to start a claim. The time limit for contesting a will is six months after the grant of probate or letters of administration.

If you are interested in discussing contesting a will please see How Vardags can help with contesting a will.