Coping with the grief and bereavement of losing a loved one can be challenging and emotional. If there is an issue or dispute with the Deceased's Will or Estate, matters can become even more difficult and emotive, particularly where family disputes arise.
Our specialist team is experienced in advising on all aspects of Will disputes and we can support you by providing you with a range of options to choose from.
Can I contest a Will?
There are various grounds upon which to challenge the validity of a Will or claim against the testator's Estate. The most common reasons are:
- The testator did not have the appropriate mental capacity when they made the Will
- Someone coerced the testator into making the Will
- The Will was not signed properly according to the correct legal formalities
- The testator should have made provision for you
- The testator made promises to you which were not refelcted in his/her Will.
- The Will is a forgery
We can help you find out whether you have grounds for challenging a Will. Please do not hesitate to contact us on 01392 687547 or Freephone number 0800 331 7640.
What are the grounds for challenging a Will?
1. The testator did not have the appropriate mental capacity when they made the Will
If the testator did not have the required mental capacity according to a legal test when they made their Will then it will be invalid.
For the Will to be valid the testator should:
- have understood that he was making a Will which would come into effect on his death
- have understood the extent of the property of which he is disposing
- have appreciated any moral claims to which he ought to give effect
- not have suffered from any disorder of the mind
It is common to bring claims based on the testator's lack of capacity where the testator suffered from a disease such as Alzheimer's or dementia.
2. Someone coerced the testator into making the Will
If the testator was coerced into making a Will on particular terms then it may not be valid. The testator's freewill must have been overcome by someone else. If the testator was elderly or vulnerable less pressure may be required to overcome his/her freewill than if the testator was more able.
3. The Will was not signed properly according to the correct legal formalities
A Will should be signed by the person who made it in the presence of two or more witnesses. If a Will is not 'executed' properly then it will be invalid.
4. The testator should have made provision for you
If you make a claim that the testator should have made provision for you in their Will you are not actually saying that the Will is invalid but rather that the testator did not provide for you in their Will when they should have done. This claim is commonly brought by spouses, civil partner, cohabitees, children and dependants.
5. The testator made promises to you
You may have a claim if the testator promised that you would inherit when s/he died and you acted upon this to your detriment. For example, you worked without payment for the testator or cared for the testator over a long period of time or carried out significant work to the testator's property. This would be a claim against the testator's Estate, not a claim that the Will is invalid.
6. The Will is a forgery
This is a serious allegation and hard to prove, but if there is sufficient evidence to show that the Will is a forgery it will be invalid.
If you think you might have grounds for contesting a Will, please call us on 01392 687547 or Freephone 0800 331 7640.
Why should I contest a Will?
People have different reasons for contesting a Will. Often people challenge a Will because they feel that it is not right or fair, although this on its own will not be sufficient. A legal reason to challenge a Will is always required.
Some people contest a Will because they do not believe that it represents the testator's true wishes, perhaps because the testator did not have capacity when s/he made it. Others bring a claim against the testator's Estate because they have not been provided for in circumstances where the testator should have provided for them.
How do I contest a Will?
If you wish to contest a Will you should instruct a solicitor who specialises in challenging Wills, as this is a niche area of legal practice which has its own specific rules. Your solicitor will be able to advise you on the legal merits of your case and what needs to be done.
You should always seek legal advice promptly as some claims have a short time limit for bringing proceedings. If you act quickly we can usually stop or delay a grant of probate being obtained by the Executors, which should prevent the Estate's assets being distributed.
Is it common to contest a Will?
Whilst the majority of Wills are not contested, increasingly people are challenging Wills if they think that they are not valid or making claims against a testator's Estate in a situation where provision should have been made for them.
The long term increase in property prices has increased the value of Estates. Also it is common now for vulnerable people to live for a long time with illnesses such as dementia, which may affect their capacity to make a valid Will.
Increased public awareness of probate disputes has made litigation more acceptable.
My spouse or partner has not provided for me in their Will. What can I do?
There is legal provision (known as the Inheritance (Provision for Family and Dependants) Act 1975) which enables:
- civil partners; and
- cohabitees who have lived with the testator for the whole of the 2 years before death
to claim provision from the testator's Estate.
If you fall into one of these categories you should seek legal advice straightaway as a claim needs to be brought within a particular time limit.
Someone who was supporting me has died. Is there anything I can do?
If someone was financially maintaining you before they died and they have not provided for you then you may be able to bring a claim against their Estate for financial provision. If you think you might have a claim you should seek legal advice quickly as there is a time limit within which to bring a claim.
My parent has not provided for me in their Will. Can I challenge this?
Children can bring a claim for financial provision from the testator's Estate, although this can sometimes be difficult for adult children to do. If you think you might have a claim you should obtain legal advice as soon as possible as there is a time limit within which to being a claim.
I think the testator was pressured into making a Will on particular terms. Does this mean it is invalid?
It depends. Persuasion, appealing to family ties or asking to inherit to prevent future poverty are all legitimate. However, if the testator is pressurised or coerced so as to overcome their freewill then the Will will be invalid.
There is a fine line between legitimate persuasion and illegitimate pressure and you should consult a solicitor if you suspect that the testator may have been unduly pressurised into making a Will.
Someone always promised that they would provide for me in their Will but they have not done this. Is there anything I can do?
You may be able to bring a claim against someone's Estate if they promised you that you would inherit from them when they died and you relied on this promise to your detriment. For example, you might have worked for very little pay, cared for them or paid for improvements to their house.
Does a Will need to be signed in a particular way?
Yes - if a Will is not signed and witnessed in a specific way then it will not be valid. The person making the Will should have signed it in the presence of two witnesses, who should then have signed the document in the presence of the person making the Will.
Whether the Will has been signed and witnessed correctly is one of the first things that a solicitor will check when investigating contesting a Will.
Does marriage revoke a Will?
Yes, getting married will revoke a Will unless it is made in contemplation of that particular marriage.
What is probate?
Probate is the process that takes place following a person's death. It includes collecting in all of the testator's assets and money, paying any debts and distributing what is left to the people entitled to it according to the testator's valid Will or the intestacy rules.
This process usually takes up to a year. However, if there is a dispute in relation to the validity of the Will or Estate it is likely to take longer than this.
What is contentious probate?
Contentious probate is a dispute in relation to the validity of the Will or the administration of the Estate of someone who has died.
What is a Trust?
A Trust is where assets are looked after by one person, the trustee, for the benefit of another, i.e. the beneficiary. Trustees have legal obligations to beneficiaries.
Trusts are often set out in a document, but that is not always the case. Trusts can arise without either the Trustee or the Beneficiary knowing a Trust has been created.
To find out more about Trusts, visit our dedicated pages here.
How long will it take?
Asking how long a claim will take is a little like asking how long a piece of string is. It depends on a number of factors including the behaviour of the other party to the dispute. We always try to resolve disputes and the majority of claims do settle. Very few claims reach a final hearing at Court.
N.B: The person who made the Will is called the testator.
If you wish to find out more information, please do not hesitate to contact us on 01392 687547 or Freephone 0800 331 7640.
Alternatively, please fill in our website enquiry form and we will give you a call back.