Contesting a Will

How to contest a Will

The rules surrounding Wills, estate and probate are complicated. It can be particularly challenging when you want to contest a Will.

If you suspect that a Will is not what the deceased would have wanted, you have several grounds to contest the Will. Once you know what you can challenge the Will on, you should act quickly and get obtain legal advice in order to identify the best course of action.

There are several grounds for contesting a Will. They are:

Lack of testamentary capacity

The general rule for testamentary capacity was established in Banks v Goodfellow (1870). The ruling set out that a person must understand the nature of making a Will and its effects, understand the extent and value of the property being distributed after death and that they are of sound mind.

Undue influence

Undue influence is when the deceased is coerced into agreeing to certain terms in their Will.

It can be difficult to prove undue influence as there is no presumption that because someone in a position of trust receives a gift of assets from another person that any undue influence took place.

Factors such as last minute or unexpected changes to a Will or the Will including different wishes to those they’ve expressed before could be signs of undue influence.

Lack of knowledge and approval

The deceased may not have properly understood the contents of the Will. Even if they had the mental capacity to understand the Will they were making, they may have had learning difficulties, been visually impaired, had difficulty hearing, were frail or particularly vulnerable at the time the Will was written.

You may also feel as though the deceased has been manipulated or pressured into leaving money to a certain beneficiary. You’ll need to provide evidence of this before contesting a Will in the UK.

Lack of valid execution

There are stringent requirements for a Will to be legally valid and if these have not been adhered to, it may be possible to contest it.

For a Will to be valid, it must be in writing and signed by the testator or someone else in their presence and under their direction. It must also appear that the testator intended to give effect to the Will by signing it.

The signature will only be legally valid if it was done in the presence of two witnesses, who must both sign the document.

Forgery and fraud

You might be suspicious that a Will is forged or otherwise fraudulent. Despite being among the most serious reasons to contest a Will, they are difficult to prove.

In the case of forgery, you will likely have to rely on a handwriting expert’s opinion. They will probably need to see a range of samples of the deceased’s writing and signatures to be able to reach a conclusion.

Fraud is often compared to undue influence. The main difference is that undue influence involves a degree of coercion, but fraud does not.

Clerical error

Formally known as rectification and construction (as an error requires rectifying), clerical error is when the person preparing the Will made a mistake. You might also believe that the person preparing the Will misunderstood what the testator told them, meaning it doesn’t accurately reflect their wishes.

Equally, the testator’s wishes might not be clearly written in the Will. You might, for example, believe they struggled to understand legal terms so the Will has been incorrectly transcribed.

Who can contest a Will?

In order to be legally able to contest a Will, you must be a spouse, child or cohabitee of the deceased or a person who is expressly mentioned in the Will or a previous Will.

If you feel you have been unfairly treated in the Will, you may be able to challenge it.

You may have been named in the Will but received less than you expected or been left out of it entirely. You may have been financially dependent on the deceased and did not receive enough in the Will. You may have been promised something by the deceased before they passed away but not received it.

There is also the possibility that you are worried the Will doesn’t reflect the wishes of the deceased. In all of these cases, you should seek legal help.

Is there a time limit to contest a Will?

In order to contest a Will, you’ll need to act fast. You’ll have different limitations depending on what specific claim you are making.

If you are claiming against the Inheritance Act or making a claim for maintenance, you have six months from the grant of probate. If you’re a beneficiary claiming against the Will, you have 12 years from the date of the testator’s death.

Meanwhile, if you’re claiming that fraud has taken place, there is no time limit on your ability to contest a Will.

How long does contesting a Will take?

The length of a Will contesting typically depends on the claim being made against it. For example, a beneficiary’s name being spelt incorrectly due to clerical error is likely going to be an easier and faster problem to deal with than proving a case of fraud.

Can a Will be contested after probate?

It is possible to contest a Will after probate has been granted, but the estate may already have been distributed, making it more difficult to obtain any assets.

It is therefore advisable to seek legal advice as soon as you realise you want to contest a Will. The faster you act, the more straightforward the process.

What happens if you’re successful?

If you’re successful in making your claim, the Will should be declared invalid. It will then be replaced by the next most recent version of it. If there isn’t another Will, the rules of intestacy will apply.

The process for contesting a Will in the UK is highly complex. It can see you being caught up in a lengthy legal battle, as well as being costly for everyone involved. Should you want legal help, you can get in touch with our experts by making an enquiry or requesting a callback at the top of your screen. They will be able to advise on the next steps toward defending your loved one’s wishes.