Solicitors Specialising in Inheritance Claims and Contested Probate
How Can I Challenge a Will?
For many years now, challenging a Will in the courts has been on the rise. In 2021, the High Court heard 105 contentious Will cases, a substantial increase from 68 in 2020. The reasons for the long-term increase in contentious probate are now well established. More blended families and subsequent marriages, higher-value estates due to large increases in property values, and the use of DIY Wills have all led to more contested probate claims. Wills are also being challenged due to the increase in levels of dementia and similar illnesses, allowing individuals to question the mental capacity of the person making the Will.
It is fair to say that while the number of contentious Will claims has risen, the legal bar for winning such cases is still extremely high. This is because the courts in England and Wales still hold the view that individuals have the right to determine what happens to their estate.
On this page, we will explain all you need to know about contesting a Will, including the grounds, the process, and how the courts handle this type of case.
Thinking of contesting a will? Our highly experienced team offer FREE initial phone advice with no strings attached. Call on FREEPHONE 0800 1404544 now.
Can I challenge a Will?
Challenging the Will of a loved one, may be possible, but you will need a valid reason for doing so. You must have a vested interest in the Will, i.e. be a close family member (spouse, child), cohabitee, or someone who is included in the Will.
There are two main routes available to contest a Will:
1) On the grounds that the Will is not valid
2) An inheritance claim under the Inheritance Act 1975
You may also be able to challenge a Will on the basis of a broken promise. This may be the case if someone promised something (e.g. money, property, or possessions) to you on their death, but you later discover this was not included in their Will (this is referred to in legal terms as ‘proprietary estoppel’).
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Challenging a Will on the grounds that it is not valid
You may be able to successfully challenge a Will if you can prove that it was not legally valid.
In order for a Will to be legally valid, the person who made the Will (called the ‘testator) must have:
· Been at least 18 years old
· Created the Will voluntarily and without coercion
· Had the mental capacity to understand what the Will contained
· Made the Will in writing and
· Signed the Will – this must have been witnessed by two individuals over the age of 18 who must also have signed the Will in their presence
If it can be shown that any of these requirements for a valid Will were not met, then challenging a Will may be possible on the grounds of:
· Lack of testamentary capacity
· Improper execution of the Will
· Undue influence/coercion
· Fraud
· Lack of knowledge and approval, and
· Revocation
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Lack of testamentary capacity
If you are concerned that your loved one created a Will when they lacked the mental capacity to understand what they were doing, you may be able to challenge their Will. This means that they must have understood the property they were giving away and to whom. According to the statutory test for capacity, which is set out in section 2 of the Mental Capacity Act 2005 (MCA 2005):
“a person lacks capacity in relation to a matter if, at the material time, he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.
The MCA 2005 goes on to confirm that:
· It does not matter whether the impairment or disturbance is permanent or temporary, and
· A lack of capacity cannot be established merely by reference to a person’s age or appearance, condition or aspect of their behaviour.
It is important to bear in mind that if a Will is shown to have been executed and signed properly according to the law, it will be presumed that the testator had sufficient mental capacity. In other words, it is not enough to challenge a Will simply on the assumption that a person lacks mental capacity. Evidence must be provided that they lacked capacity (e.g. a medical report from a doctor or other health professional).
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Improper execution of the Will
As mentioned above, for a Will to be legally valid, it must meet the strict requirements of section 9 of the Wills Act 1837,(i.e. be in writing and properly signed and witnessed).
If this is not the case, challenging a Will may be possible on the basis of what is known as “want of due execution”. You may be able to contest a Will due to “want of due execution” if any of the following are NOT true:
· It is in writing and signed by the testator or by some other person in his presence and by his direction and
· It appears that the testator intended by his signature to give effect to the Will and
· The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time and
· Each witness either attests and signs the Will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
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Undue influence/coercion
If there is any evidence that your loved one was forced, coerced, intimidated, manipulated or deceived into making a Will, you will be able to make a successful challenge on the grounds of “undue influence”. It is important to bear in mind that the onus is on you to prove that this was the case and that the courts have set the bar very high. In short, it’s hard to prove.
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Challenging a Will on grounds of Fraud
There are many ways in which fraud may cause a person to lose some or all of their inheritance. For example, if another person made a conscious effort to make false statements to the testator about a beneficiary, causing them to remove that beneficiary from their Will, this may constitute fraud.
If you believe that fraud may have occurred in the Will of your loved one, make sure you speak to one of our specialist solicitors.
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Lack of knowledge and approval
If your loved one suffered from visual or hearing impairment or they were unable to write or read, it may be possible to challenge their Will due to lack of knowledge and approval of the Will.
In other words, if their health or level of reading meant they did not understand the Will and, therefore, could not approve it, you may have a basis for a challenge against their Will.
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Revocation
It may also be possible to challenge a Will if you can show that it no longer applies because it has been revoked (i.e. cancelled). This may be the case if your loved one had a Will that was written before they married or entered into a civil partnership and was not updated. Revocation may also provide grounds to challenge a Will if:
· The testator had their marriage or civil partnership annulled
· The testator wrote another Will later, or
· The Will was destroyed
Challenging a Will under the Inheritance Act 1975
Under the Inheritance (Provision for Family and Dependants) Act 1975, you may be able to challenge the Will of a loved one if they did not make ‘reasonable financial provision’ for you. But only certain people can make a challenge under the Inheritance Act 1975 claim, including:
· Children of the deceased
· Spouse or civil partner of the deceased
· Former spouse or civil partner of the deceased – for this to apply, they must not have remarried or entered into a new civil partnership
· Anyone who has lived as a cohabitee with the deceased in the last two years before their death
· Step-children who were treated as a child of the family by the deceased and
· Anyone who was partly or wholly financially maintained by the deceased immediately before the deceased died.
It is important to note that there are strict time limits when challenging a Will under the Inheritance Act. Claims must be made within six months from when the Grant of Probate is issued. If the claim is not made in time, the court may still allow the case if you can provide them with a strong reason for missing that deadline
If a successful claim is made under the Inheritance Act 1975, the court will make a provision from the estate of the deceased towards your financial needs.
What is meant by ‘reasonable financial provision’?
If you are the spouse or child of someone who has recently died and they didn’t provide for you financially in their Will, you may be able to challenge their Will.
Before challenging a Will under the Inheritance Act 1975, the first question to ask is, “has the deceased’s estate made reasonable and financial provision for the class of the potential applicant by the standard applicable to that applicant?”.
When deciding whether the person who died made a reasonable financial provision for you, the courts will normally take into account a number of factors, such as:
• Whether the deceased had an ongoing financial obligation to you
• The value and contents of the estate
• Your physical or mental health needs
• Your financial needs
Challenging a Will – how does it work?
There are several steps involved in challenging a Will, as follows:
1. Before you challenge a Will
Before you proceed with contesting the Will of a loved one, it is really important to get the right legal advice from a solicitor specialising in wills disputes. You can rest assured that our team have that expertise.
They will first listen to the details of your case and give you an initial idea if you have grounds to bring a claim. At this time, it is important to gather any documents that are relevant, including the Will, any codicils (the name for formal variations of an existing will), and a copy of the grant of probate.
2. Pre-action protocol procedure
If there is a solid basis for a claim, your Solicitor will start your claim off with what is called the ‘pre-action protocol.
Depending on your particular circumstances, they may also recommend that you issue what is referred to as “a caveat”. By lodging a caveat, the issuing of a grant of probate or letters of administration which allow the estate to be distributed according to the Will can be stopped. This will then enable your challenge to be properly raised and considered before the estate is liquidated and distributed to the beneficiaries.
During the pre-action protocol procedure, depending on the urgency and circumstances of the case, you may be able to challenge a Will outside of the court system using mediation or other non-contentious dispute resolution methods.
3. Prepare and submit the claim to the court
If the matter needs to go to court, your original claim must be made by the deadline. For example, Inheritance Act claims must be made within 6 months of Grant of Probate.
Your Solicitor will prepare a Will claim form and particulars of claim and gather any testamentary documents required. The civil procedure rules state that testamentary documents include:
“a will, a draft of a will, written instructions for a will made by or at the request of, or under the instructions of, the testator, and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed”.
On receipt of the application, the court will serve the defendant (e.g. the Executor of the Will) with particulars of the claim. The defendant then has 28 days to file an acknowledgement of service stating whether they will defend the claim or not. If the defendant plans to defend the claim, they will need to file their written evidence and testamentary documents.
4. Trial
Once all of the necessary steps have been completed, the court will set a trial date.
The overall process of challenging a Will can take many months, especially if the circumstances are complex and lots of evidence and documents are needed.
One final piece of advice on challenging a Will
Knowing whether to contest a Will can be an extremely difficult decision. Doing so can cause considerable family upheaval and emotional distress. That said, if you have solid grounds for contesting the Will and you have weighed up the pros and cons, bringing a claim may allow you to receive part of the estate of a loved one that you are rightly owed.
FAQs
What proof do you need to contest a will?
If you want to contest the validity of a Will, you will need evidence to support your claim. This could include the file from the solicitor who prepared the Will and statements from witnesses who have information about the deceased’s situation and state of mind.
For an Inheritance Act claim, you need to provide proof of your relationship to the deceased. The court will also need information about your financial situation, both now and in the foreseeable future. This includes the resources available to you and evidence of your needs.
Other information will support your claim, such as evidence of any disability you have and other relevant details. If you ask us to represent you in contesting a Will, we will identify the best available evidence and take steps to obtain this.
What is the first step in contesting a will?
The first step in contesting a Will is to speak to an expert contentious probate solicitor. It is essential to take the correct approach and to avoid unnecessary conflict. A solicitor can advise you of the strength of your claim and the best strategy for dealing with it.
They will put your case to the executors in a clear and professional way. They can suggest options for resolving difficulties and will often be able to negotiate a settlement without the need for court.
How do you prove undue influence in a will?
To prove undue influence, you need to show that the deceased was pressured or coerced into making a Will that benefits the person exerting the influence.
You will need evidence from anyone who witnessed the coercion as well as other supporting information. For example, the deceased may have suddenly changed their Will in a surprising way. A copy of their original Will and evidence from their solicitor will help to establish what they intended to happen to their estate.
Other individuals in the deceased’s life may be able to provide witness statements. There may also be evidence that the person exerting the influence took steps to isolate and control the deceased.
If you believe that someone has exerted undue influence over a loved one, we can discuss the case with you and assess what evidence may be available to support your claim.
