Probate Litigation: A Guide to Contesting a Will

Contesting a Will

When a person passes away, their will represents their final preferences about distributing their possessions. However, there are times when the validity of a will is questioned, leading to what’s known as contesting a will. This action shouldn’t be taken lightly and involves legal processes to challenge the legitimacy of the will.

It’s a path taken when someone believes the will doesn’t accurately represent the deceased’s intentions, possibly due to undue influence, lack of mental capacity, or other legal flaws. This article will discuss the legal basis for contesting a will, the step-by-step process, associated costs, and more. 

In this guide, our probate litigation experts that will help you understand the complexities of contesting a will, ensuring you are well-informed and prepared for the journey ahead.

Understanding the Wills Act 1837

The Wills Act of 1837 is an essential piece of legislation in the United Kingdom, forming the foundation for creating and validating wills. This Act empowers every adult to decide how their real and personal property will be distributed after death. This includes assets they own outright and any interests they hold as beneficiaries under a trust. 

The Act applies to all testamentary dispositions, which are arrangements a person makes to allocate their property upon death. These dispositions are inherently changeable and can be withdrawn while the person is alive.

The Wills Act of 1837 sets out specific requirements to ensure a will is legally valid. Firstly, the will must be written. It’s not just about jotting down wishes; the document must be formally drafted.

The testator, the person whose will it is, must sign the document, or it must be signed as per their direction and in their presence. This signature isn’t just a formality; it signifies the testator’s intent to provide effect to the will.

The attendance of witnesses is critical in a will. The act of creating or recognising a will must occur in front of at least two witnesses present at the same moment. Witnesses play a critical role in attesting to the authenticity of the will, each signing or acknowledging their signature in the testator’s presence.

The Act also specifies that there’s no need to publish a will. It acknowledges that a witness’s ability to prove the will later does not affect its validity. Moreover, any alterations to the will must be executed in a similar manner as the original document.

In general, no one under the age of 18 may make a lawful will. However, there are exceptions for young people in the military services on active duty or sailors at sea, as established by the Wills (Soldiers and Sailors) Act 1918.

Grounds for Contesting a Will

Contesting a will is a significant legal endeavour that demands solid legal grounds. These grounds ensure that the challenge to the will is legitimate and not just based on personal dissatisfaction with its contents. The grounds to contest will include:

The Will Is Not Valid

For a will to be considered legally correct, it must adhere to specific formalities outlined in section 9 of the Wills Act 1837. This includes the physical process of executing a will, ensuring it has what is called ‘formal validity.’

While there are other factors to consider, such as the testator’s mental capacity, non-compliance with section 9’s provisions alone can invalidate a will. This section dictates the necessary steps for a will’s execution, including its writing, signing, witnessing, and the testator’s intention.

Lack of Testamentary Capacity

Testamentary capacity refers to an individual’s legal and mental competence to make or alter a valid will. If a testator lacks this capacity at the will’s execution, the will can be deemed invalid.

The test for this capacity is based on case law and involves assessing whether the testator understood the nature of making a will and its effects, the extent of the property being endowed, and the potential claims of those who might be expected to benefit.

Lack of Due Execution

A key element in the validity of a will is due execution. The testator must sign the will in front of at least two witnesses, who must all be in attendance at the same time.

Each witness must sign to acknowledge they witnessed the testator’s signing. If this process is not correctly followed, it opens the door for a claim of lack of due execution.

Lack of Knowledge and Approval

This ground arises when a mistake in the will suggests the testator lacked knowledge or did not approve of its contents. Mistakes can occur during the will’s drafting, or the testator may not have understood or been correctly informed about its content.

Proving this requires demonstrating that the testator was unaware of or did not agree with the contents at the time of signing.

Undue Influence

Undue influence happens when a testator is pressured or forced into changing their will. This type of influence can override the testator’s wishes without changing their mind completely.

Signs of undue influence might include a homemade will without professional advice, uncharacteristic language, or content that benefits someone who exerted influence over the testator.

Fraud or Forgery

A will can be contested on the grounds of fraud or forgery if there’s valid evidence to suggest it has been tampered with. Examples include a situation where the testator’s instructions are altered by someone else for personal gain, or the testator’s signature is forged.

Proving fraud or forgery requires demonstrating that the will does not mirror the true intent of the testator due to dishonest manipulation.

If you’re considering contesting a will or believe you may have grounds to make a claim, it’s imperative to get legal advice promptly. An experienced solicitor can help you understand the specific time frames applicable to your case and guide you through contesting, ensuring that your rights are protected and any claim is made within the appropriate legal time frame.

How To Contest a Will – Steps Involved

Contesting a will is a complex legal procedure that involves several crucial steps. The steps typically include the following: 

  1. Seek Legal Advice: Consulting a solicitor specialising in probate or inheritance disputes is vital while contesting a will. They will give legal advice, evaluate the strength of your case, and explain your rights and choices, including the cost of challenging and potential financial compensation.
  2. Enter a Caveat: You or your solicitor can enter a caveat at the Probate Registry. This notice prevents the grant of probate from being issued, effectively pausing the distribution of estate assets and allowing time to investigate and contest the will.
  3. File a Warning: If a grant of probate has already been requested, you may submit a warning or appearance to signal your intent to dispute the will. This begins the official legal procedure.
  4. Assemble Evidence: Work with your attorney to collect all appropriate documents, records, and proof supporting your claim. This includes medical records, witness statements, and correspondence related to the testator’s capacity when making the will.
  5. Try Mediation: Before initiating formal court proceedings, consider mediation or alternative dispute resolution. This can involve negotiating with other parties involved to gain an out-of-court settlement.
  6. Issue Court Proceedings: If mediation is unsuccessful, court proceedings should be approached. This includes filing a formal claim and presenting evidence to the court, following legal requirements and timelines.
  7. Court Hearings and Decision: You may need to attend court hearings where the evidence is presented and arguments are made. The court considers the evidence, the size of the estate, and the law to reach a decision. This decision determines whether the will is set aside or upheld.
  8. Reach a Settlement: Settlements can occur at any stage. This might involve altering the will’s terms or finding an acceptable agreement for all sides.

Throughout this process, it’s vital to understand that challenging a will Can be mentally and economically taxing. The legal costs, potential impact on relationships, and the court’s discretion in making decisions should all be considered. Legal advice is crucial in guiding these complexities and in understanding the possible outcomes.

Also read: How to Fight a Workers Compensation Claim

Time Limit for Contesting a Will

In England and Wales, the time limit for contesting a will is subject to several factors, and it’s crucial to act promptly and with a clear understanding of these constraints.

Generally, if you are considering a claim, particularly under certain legal grounds, the duration to contest can be as short as six months from the grant of probate, a critical legal step, confirming a will’s validity and authorising the executor to administer the estate.

However, there are multiple noteworthy exceptions to the time limit. There is no time restriction for bringing a lawsuit if evidence reveals that the will was produced unlawfully or that there has been fraud with regard to it. 

If the individual challenging the will is a minor (under 18) or lacks mental ability, the time period may be extended. In these circumstances, the clock for disputing the will usually does not start ticking until the person reaches the age of 18 or recovers mental ability. 

The time limit for claims filed under the Inheritance (Provision for Family and Dependents) Act of 1975, which permits family members and dependents to seek fair financial provision from an estate, is six months after the award of probate. 

It’s essential to understand that these are general guidelines, and the specific circumstances of each case can influence the applicable time limits. Timeliness is crucial, especially in contentious trust and probate cases, where failing to act within the time limits can result in losing the right to contest the will or make a claim under the Inheritance Act 1975.

How Much Does It Cost To Contest a Will?

The cost of contesting a will can vary significantly based on various factors that contribute to the sophistication and length of the case.

Firstly, the number of parties involved and the types of evidence required can influence costs. Cases with multiple parties or requiring extensive evidence gathering are often more expensive.

Besides, longer cases generally incur higher fees due to the extended time solicitors and legal teams need to invest. It’s worth mentioning that many disputes can be settled out of court, which is typically less costly. However, if the case goes to court, be prepared for substantial court fees.

Legal fees are another important consideration. These costs do not automatically come out of the deceased’s estate and are usually determined by the court. Typically, the losing party is responsible for covering these costs, although fees might be deducted from the estate in some cases.

The complexity of the case, such as if the deceased lived or had assets abroad, can also add to the cost. Additionally, the grounds for contesting a will can affect costs. Stronger grounds may lead to a quicker resolution, potentially reducing legal hours and the likelihood of going to court.

Given these variables, it’s unattainable to predict the exact cost of contesting a will. However, solicitors can often offer different pricing structures to help manage the financial aspects of an inheritance dispute. It’s always advisable to discuss the strength of your grounds for contesting with a solicitor to decide both the strategy and cost of the case.

Also read: How to resolve a consumer dispute?

Need Expert Guidance in Contesting a Will? Our Legal Team Is Here To Help

Contesting a will can be a challenging and complex process, especially if it involves a situation such as contentious probate, challenging the validity of the document, or claims under the Inheritance (Provision for Family and Dependants) Act 1975. If you’re facing a situation where a will may not reflect the true wishes of the deceased, our team of legal experts is here to assist.

Whether you are a family member, a civil partner, or someone who believes they have a claim, we can help. Our team is equipped to handle your case with the care and expertise it deserves.

With our guidance, you’ll have the support needed to navigate the legal complexities, potentially avoiding costly court proceedings and aiming for a successful outcome. We’re here to ensure your case is handled effectively, reflecting the true wishes of the deceased and protecting your interests.

Contact us today, and let’s discuss how we can help you contest a will and achieve the justice you seek.

FAQs

The expense of challenging a will varies based on a number of factors, including the complexity of the case, the participation of legal specialists, and court expenses. Pursuing legal advice is vital to understand the potential costs of contesting a will.

An executor is a person designated by the person who passed away in their will to carry out the directions and intentions outlined in the will. 

Yes, you contest a will after probate has been presented, provided that you hold a stake in the estate of the deceased. This applies whether you are an executor, a beneficiary mentioned in a prior will, or someone entitled under the rules of intestacy.

Involving a solicitor as early as possible when contesting a will is advisable. A solicitor can provide essential guidance on the legal process, advise on the strength of your case, and represent your interests effectively.

A grant of probate is a legal authorisation, often required to manage bank accounts, liquidate assets, and pay off debts following someone’s death. This document is called a grant of probate only when the deceased has left a will. In cases where no will exists, it is termed a grant of letters of administration.

Ask our Expert Legal Team

At Gulbenkian Andonian, we pride ourselves on “Excellence, Experience and Efficiency”. With over 35 years of experience on your side, our team of London based lawyers and solicitors have a wealth of experience advising individuals, families and businesses of all sizes to find clarity on UK law.

Call us on +44 (0) 207 269 9590 or fill out the form below. We usually reply within a few hours.

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