CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – AN EXPLANATION OF THE BASICS OF HOW TO CONTEST A WILL
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, explain the basic principles governing Will dispute and Will contest claims
How to Contest a Will in England and Wales: A Guide
Contesting a Will in England and Wales can be a complex process, but it is possible if there are legitimate grounds to challenge its validity. Whether you believe a Will was made under undue influence, without the necessary mental capacity, or is legally invalid, understanding the basics of contesting a Will can help you decide on the right course of action.
This guide outlines the key aspects of challenging a Will, including the legal grounds, the process involved, and what to expect if you pursue a claim.
However please also consider one of our earlier blogs on this subject for further information including:
Basic Principles (Part 1 of 2) – Will Claim Solicitors
What Does Contesting a Will Mean?
Contesting a Will means legally challenging its validity. If a Will is successfully contested, it may be declared invalid, and the deceased’s estate will be distributed according to an earlier valid Will or the intestacy rules (if no prior valid Will exists).
Who Can Contest a Will?
Not just anyone can challenge a Will. Generally, the following individuals have the legal standing to contest a Will:
- Beneficiaries named in the Will or a previous Will
- Individuals who would inherit under intestacy rules (if the Will is declared invalid)
- People financially dependent on the deceased
- Creditors of the deceased’s estate
Grounds for Contesting a Will
A Will cannot be challenged simply because someone is unhappy with its contents. There must be legal grounds, including:
1. Lack of Testamentary Capacity
Under English law, a person making a Will (the testator) must have testamentary capacity at the time of signing. The test established in Banks v Goodfellow (1870) requires that the testator:
- Understands the nature and effects of making a Will
- Knows the extent of their estate
- Recognises the claims of those who might expect to inherit
- Is not suffering from a mental disorder that affects their decision-making
If the testator lacked capacity due to dementia, illness, or medication, this could be a ground for contesting the Will.
2. Lack of Knowledge and Approval
For a Will to be valid, the testator must have known and approved of its contents. If there is reason to believe the testator did not fully understand what they were signing or was misled about its terms, the Will may be challenged.
3. Undue Influence or Coercion
If someone exerted undue influence or pressured the testator into making the Will in their favour, this could render the Will invalid. Proving undue influence is difficult, as the claimant must demonstrate that the testator was coerced to the extent that the Will does not reflect their true intentions.
4. Fraud or Forgery
A Will can be challenged if it has been fraudulently altered, forged, or signed under false pretences. Fraud claims require strong evidence, such as expert handwriting analysis.
5. Failure to Follow Proper Legal Formalities
Under the Wills Act 1837, a Will must meet these formal requirements:
- Be in writing
- Be signed by the testator (or by someone else in their presence and under their direction)
- Be witnessed by at least two people, who must also sign the Will
If a Will fails to comply with these requirements, it could be declared invalid.
6. Claims Under the Inheritance (Provision for Family and Dependants) Act 1975
Even if a Will is valid, certain individuals can make a claim under the Inheritance Act 1975 if they were financially dependent on the deceased and have not been adequately provided for. This applies to:
- Spouses and civil partners
- Former spouses and civil partners (who have not remarried)
- Children (including adult children and stepchildren)
- Cohabiting partners (who lived with the deceased for at least two years before death)
- Individuals financially maintained by the deceased
How to Contest a Will: The Process
Step 1: Seek Legal Advice
If you believe you have grounds to contest a Will, it is essential to consult a solicitor specialising in contentious probate. They will assess your claim and advise on the next steps.
Step 2: Enter a Caveat (If Applicable)
If the estate has not yet been distributed, you may enter a Caveat with the Probate Registry to prevent the Grant of Probate from being issued. This allows time to investigate and pursue a claim. A Caveat lasts six months and can be renewed. However this is only usually appropriate where the legal validity of a Will is being challenged – it should not be used to stop the Grant of Probate if the claim is for financial provision only.
Step 3: Pre-Action Negotiation and Mediation
Before issuing formal court proceedings, parties are encouraged to engage in Alternative Dispute Resolution (ADR), such as mediation. Many Will disputes are resolved without going to court, saving time and costs. See for example:
Step 4: Issuing Court Proceedings
If mediation fails, legal proceedings may be issued in the High Court under CPR Part 57 (which governs probate claims). The claimant must present evidence supporting their challenge.
Step 5: Court Hearing and Judgment
The court will assess the evidence, including medical records, witness testimony, and expert opinions. If the challenge is successful, the court may declare the Will invalid, and the estate will be distributed accordingly.
Time Limits for Contesting a Will
Strict time limits apply depending on the type of claim:
- Inheritance Act 1975 claims – within six months of the Grant of Probate
- Fraud or forgery claims – no time limit (but should be pursued promptly)
- Probate claims challenging validity – generally within 12 years of death, but earlier action is advised
Costs and Risks of Contesting a Will
Legal costs can be substantial, and the losing party may be ordered to pay the other side’s costs. However, if the challenge is based on genuine concerns, the court may order that costs be paid from the estate.
Mediation is often a more cost-effective solution than litigation.
Conclusion
Contesting a Will in England and Wales is a complex but structured process. Understanding the grounds for challenge, the legal process, and potential risks is essential before proceeding. Seeking early legal advice and considering alternative dispute resolution can help achieve a fair outcome without unnecessary litigation.
If you suspect a Will is invalid or unfair, taking prompt action is crucial to protecting your rights.
If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.
We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.