Frequently Asked Questions: How to Contest a Will
Disputes around Inheritance and challenging the validity of Wills can often be referred to as ‘Contentious Probate’.
What are the grounds for Contesting a Will?
There are various grounds for contesting a Will, which include, but are not limited to, the following:
This is the legal term used to describe a person’s legal and mental ability to make or alter a valid Will. If it is deemed that the Testator lacks testamentary capacity at the time that the Will is executed, then it may be deemed that the Will is invalid. The test for capacity is based on Case Law and is determined by the facts of each individual case.
Undue Influence or Coercion
This is where the testator could have been coerced and/or pressured into making changes to their Will and their wishes. Where Wills have been changed without the knowledge of family members can often be the start of many Contentious Probate matters.
Lack of Knowledge and Approval
This may refer to a scenario where a Will writer has made a mistake that has gone unnoticed by the Testator when the Will was signed and witnessed.
Who can contest a Will?
In theory, anyone can contest a Will, even if they do not appear to be named as a beneficiary in the Will. With this said, contesting a Will should not be something you do without having a good reason.
The most common people to contest Wills are:
- family members
- long-term partners.
When should you contest a Will?
It is best to contest a Will as early as possible in the process. Contesting a Will after Probate can be more difficult and costly.
This, of course, is not an exhaustive list of questions about contesting Wills; the above is a very basic overview. Should you wish to speak about contesting a Will with a member of our team, please make an enquiry, and someone will be in touch shortly.
Can you Contest a Will?
English law asserts the importance of respecting the wishes of the deceased, even when their wishes are not what the family and friends of the deceased are expecting.
That being said, if you suspect that a Will does not reflect the true intentions of the person making the Will (the Testator) or that the Will hasn’t been executed correctly, then it may be deemed as invalid.
The threshold of evidence when contesting a Will is high and the costs associated with the same are also high. If you would like to speak to a member of our team about contesting a Will, please make an enquiry today and someone will be in touch as soon as possible.
What are the Rules of Intestacy?
When a person dies without making a Will or leaving any wishes, they have died ‘intestate’ i.e. without a Will. This means their estate will be shared according to the Rules of Intestacy.
s22 of the Non-Contentious Probate Rules 1987 sets out the strict order of priority of those entitled to obtain a grant to administer the Estate of the deceased, starting with surviving spouse and then children of the deceased and so on.
s46 of the Administration of Estates Act 1925 sets out the strict order of priority of those entitled to benefit from an intestacy. Cohabitating partners who are unmarried or in a civil partnership cannot inherit under the Rules of Intestacy.
Where a property is co-owned, if it is owned as Joint Tenants at the time of one party passing away, then the surviving party will automatically inherit their share of the property. However, if the property is owned and Tenants in Common, one party does not automatically inherit the other party’s share when they pass away.
If you would like some advice in relation to the distribution of an estate where someone has passed away Intestate, then please make an enquiry today, and a member of our team will be in touch shortly.
Can you contest a Will after Probate?
Time is of the essence when disputing a Will, which is why we would always recommend contesting a will before Probate has been granted. However, we understand that this is not possible in all situations, as some may not be aware that Probate has been granted.
Once Probate has been granted, there is a six-month time limit in which to bring a claim against an estate under the Inheritance (Provision for Family and Dependents) Act 1975. This type of claim is usually for those who have been financially maintained by the deceased; or where it can be shown that due to your current financial circumstances, provision should have been made for you by the deceased.
Whereas if you are unhappy with a Will, whether it be because you believe the deceased lacked mental capacity or the ability to make a will, there is no strict time limit in which to bring a challenge of this kind. However, recent cases have suggested that the Court may not be inclined to deal with certain challenges once a significant amount of time has passed since the death, especially if this would prejudice the original beneficiaries of the Estate.
However, if a claim is to be made, it is recommended that it is made as soon as possible, as once probate has been issued and the estate can be distributed, the circumstances become much harder.
In scenarios where probate has not been issued, and you would like to make a claim against an estate, a Caveat may be issued against the estate. This prevents the Court from issuing probate.
What is a Caveat?
A Caveat is a temporary restriction that prevents Probate from being issued, meaning that the assets of the estate cannot be distributed. A Caveat is commonly used when there is doubt over the validity of a deceased’s Will. Caveats remain in place for six months. You have to renew them; otherwise, they will expire. There is a fee payable for the Caveat, which will be incurred every time it is renewed. The person who obtains the Caveat, the Caveator, can have it removed whenever they like by contacting the Probate Registry.
Contact our Contentious Wills and Probate solicitors today
If you have any questions or would like advice on contesting a Will, please get in touch with our specialist Contentious Wills and Probate team by using our online enquiry form or by calling 0330 404 0749.
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