Guide to Contesting a Will

When someone dies leaving a Will, their estate is distributed according to the terms of this Will. There are circumstances in which a Will can be contested but challenging a Will is not something to be undertaken lightly.

ON WHAT GROUNDS CAN YOU CONTEST A WILL?

Anyone with a beneficial interest, or potential beneficial interest in the deceased’s estate, may want to contest the Will. A named beneficiary in the Will has a beneficial interest, but close family members or beneficiaries named in a previous Will may wish to challenge the deceased’s last Will.

There are two routes a claimant can use to contest a Will:

• The Will is invalid 
• The Will did not make reasonable financial provisions for the claimant

CONTESTING A WILL ON GROUNDS OF INVALIDITY

A Will must fulfil legal and procedural requirements to be valid. Examples of contesting a Will on the grounds of invalidity include:

• Lack of testamentary capacity - the testator must have been of sound mind and capable of making their Will on the date it was signed
• The Will was not executed in accordance with the Wills Act 1837. A Will must be in writing and signed by the testator, and witnessed. The witness requirements depend on when the Will was executed
• Fraud or duress
• Mistake or error in the Will resulting in a rectification claim under section 20 of the Administration of Justice Act 1982

 If a Will is found to be invalid by a court, the deceased’s estate is distributed according to the rules of intestacy.  

CONTESTING A WILL ON GROUNDS OF LACK OF FINANCIAL PROVISION

Under the Inheritance (Provision for Family and Dependants) Act 1975, a claimant can contest a Will on grounds of lack of financial provision. In essence, the Will is valid, but the claimant argues the terms of the Will are not fair as the Will does not make reasonable financial provisions for them.

A claim under the 1975 Act can be made by:

• A spouse or civil partner of the deceased
• A person who was in a cohabiting relationship with the deceased and who lived with them as husband and wife or civil partners for the two years immediately prior to the deceased’s death
• A former spouse or former civil partner of the deceased, provided they had not remarried or entered a civil partnership
• A child of the deceased – this includes adult children and adopted children
• A person who was treated by the deceased as a child of the family - this can include step children  
• A person who was being maintained by the deceased at the date of their death. The dependant does not need to be related to the deceased, and the support can be either full or partial maintenance

HOW LONG AFTER PROBATE CAN YOU CONTEST A WILL?

Probate is the legal process that allows the executors of a Will to administer and distribute the deceased’s estate after they die. The length of time a claimant has to challenge a Will after probate is granted is governed by the Limitation Act 1980. The time limit depends on the nature of the challenge to the Will.

In summary, the time limits are:

• Fraud – no time limit
• 1975 Act dependency claim – six months from the grant of probate
• A beneficiary claiming a Will was invalid – twelve years from the date of death

After probate has been granted, the deceased’s estate can be distributed in accordance with the Will, so it is preferable to indicate a claim before assets are disposed of. 

In some cases, the grant of probate can be delayed by the claimant asking for a caveat to be issued against the estate. A caveat stops the issue of probate and lasts for a period of six months but can be renewed. The caveat allows the challenge to the Will to be investigated before the deceased’s estate is distributed. A caveat is a very useful tool and a good reason why legal advice should be sought before the grant of probate.

 WHAT HAPPENS WHEN SOMEONE CONTESTS A WILL?

When a Will is contested, the first step is to make a claim. If probate has not been granted, a caveat should be requested to stop probate and the distribution of the estate. That gives time for investigations and mediation to try to resolve the dispute. If an agreement cannot be reached, the claim will need to be determined by the court. The process, burden of proof and factors the court considers depend on the nature of the Will challenge.