How Do I Contest a Will? Common Mistakes
1. IS IT TRUE THAT I HAVE ONLY SIX MONTHS FOLLOWING THE DEATH TO CONTEST A WILL?
There is no time limit if you are claiming that a Will is not legally valid, because, for instance:
• The person making it didn’t sign it (their signature was forged)
• The person making it didn’t sign it in front of two witnesses who also signed (a legal requirement under section 9 of the Wills Act 1837 – http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/9)
• The person making it was forced or pressured into leaving money property and/or assets to someone
• The person making it was misled into leaving money property and/or assets to someone
• The person making it was so ill at the time the Will was made that he or she couldn’t possibly have understood what they were doing at the time
In none of these instances is there an applicable six month time limit. The claim can be brought at any time. HOWEVER (!!) a claim attempted long after the estate has been administered is likely to be pointless (THE MONEY HAS GONE!) and moreover, the evidence needed to prove the case is likely to have been dissipated by the passage of time (documents lost or destroyed and the recollections of important witnesses are likely to have faded or disappeared completely).
2. BUT I HAVE DEFINITELY HEARD ABOUT A SIX MONTH TIME LIMIT IN RELATION TO WILL DISPUTES/WILL CONTEST CLAIMS?
Yes, there is a six month time limit, but is only relates to claims for financial provision against a near relatives estate under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (see https://www.legislation.gov.uk/ukpga/1975/63) and claims to rectify a Will where it doesn’t carry out the instructions of the person making it in relation to his/her estate because of a clerical error or failure to follow instructions (usually by the Solicitors engaged to draft it)(see https://www.legislation.gov.uk/ukpga/1982/53/section/20). In each of these types of claim, it must be brought within six months from the date of the Grant of Probate.
SO WHAT IS THE DIFFERENCE?
The difference between these claims and one against the legal validity of the Will, is that the claims for financial provision/to rectify the Will, aren’t directly challenging the legal validity
of the Will in its’ entirety. The easiest way to understand this is to consider the position where a claim is made the Will isn’t valid because the person making it couldn’t have
understood what he or she was doing when it was made. Clearly in that circumstance it
can’t be suggested that only a part of the Will isn’t valid. If the claim is correct, the entire Will must be wrong.
3. IF THERE IS A WILL, PROPERTY WILL ALWAYS PASS IN ACCORDANCE WITH ITS TERMS?
Unfortunately, it isn’t always the case that a deceased is able to pass his/her assets in accordance with the terms of their Will. Property which he or she jointly own with another, can pass automatically to the co-owner regardless of the terms of any Will and indeed this is often the reason why a Will is never published (a Will is “published” once a Grant of Probate is issued to give the Will administrator licence to administer the estate in accordance with its terms).
Further, even if a Will actually identifies specific property which is to be left to a particular person, this doesn’t prevent the Will writer from actually selling or transferring that property to another during their lifetime.
4. I AM MY FATHER/MOTHER’S CHILD BUT HE/SHE HASN’T LEFT ME ANYTHING IN THEIR WILL – SURELY I AM ABLE TO DISPUTE THE WILL?
In the English and Welsh jurisdictions, a parent has no legal obligation to leave his or her estate to their child and a child has no legal entitlement to family property and money.
5. IT’S NOT FAIR!! MY MOTHER/FATHER HAS LEFT MOST OF THEIR ESTATE OR THE ENTIRETY OF THEIR ESTATE TO ONE OF MY BROTHERS/SISTERS – SURELY I CAN DISPUTE THE WILL ON THIS BASIS?!
Unfortunately not! Our answer above refers. A parent isn’t legally obliged to leave any part of their estate to their child. A Will cannot be challenged because it isn’t fair!
6. I HAVE A GREAT CLAIM AGAINST MY PARENT’S WILL BECAUSE HE/SHE MUST HAVE BEEN SUBJECTED TO PRESSURE (CALLED “UNDUE INFLUENCE”)?
This is the most difficult type of case to prove because what is being alleged is very similar to claiming that a criminal act has occurred. Whilst it ought not to demand a higher burden of proof in the civil courts, it does, because it is such a serious allegation. As a result, it is usually the weakest type of case, not least because the primary witness (the deceased) has usually died without providing any evidence. Further if such an act has occurred it will usually take place in private, behind closed doors, which means there is most unlikely to be any independent evidence (independent evidence is the strongest type) of what happened. What we usually find is that the complainant simply assumes this must have happened because of the circumstances as they see it (and sometimes, quite simply, because they are not in the Will!).
REGRETTABLY, A CLAIM OF UNDUE INFLUENCE ON ITS OWN, IS UNLIKELY TO BE A WILL CLAIM WE COULD DEAL WITH UNDER A NO WIN NO FEE ARRANGEMENT, BECAUSE WE ARE UNLIKELY TO WIN IT! HOWEVER A CLAIM OF UNDUE INFLUENCE IN COMBINATION WITH OTHER CLAIMS, FOR INSTANCE, THAT THE PERSON MAKING THE WILL WASN’T MENTALLY CAPABLE, MIGHT BE A SUITABLE CLAIM WHICH CAN BE TAKEN ON UNDER A NO WIN NO FEE ARRANGEMENT.
If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat.