The top 5 things you need to know about contesting a Will

When a loved one passes away, it can be disheartening to learn that the Will of the deceased does not truly reflect their final wishes.

After the loss of a loved one, contesting the deceased’s Will is not a scenario that most family members would like to contemplate. In reality, with many of us having blended family and seeing loved ones losing their mental ability due to neurodegenerative diseases like dementia and Alzheimer’s, it is common for people to question if a deceased’s Will truly reflects their final wishes.

If you find yourself in this challenging spot where you (and/or a relative) question the validity of the Will, read on to find out:

  • Common grounds for contesting a Will
  • When complicated scenarios arise
  • Who can challenge a Will
  • The process of challenging a Will
  • How long does contesting a Will take

Alternatively, you can also come and discuss your situations with one of our Wills, trust and probate team at Foys.

What is a Will?

A Will is a legally-binding document that dictates exactly how and to whom your estate (property, cash and possessions) should be distributed upon your death.

1. Common grounds for contesting a Will

Just because a Will seems unfair or unexpected does not mean you have grounds to challenge the Will. So in this section, we will discuss some of the common grounds to contest a Will.

Lack of testamentary capacity

Testamentary capacity is a legal term that is used to describe the mental capacity and comprehension needed of the person writing the Will (the testator). If the person making the Will did not seem to be fully aware of what they were doing, then you could challenge the Will under these circumstances.

Undue influence

If a person was unduly influenced at the time of signing, the Will could become invalid. An example is a carer who has taken control of a person’s day-to-day life and has become a major beneficiary.

How the Will was signed and witnessed

For a Will to be valid, it needs to be signed by the person making it (the testator) and witnessed by two individuals.

Fraud

This could range from someone producing a Will with forgeries, a fake Will, to someone presenting the testator with a Will to sign but telling them that they were signing another document.

Lack of financial provision

Anyone who is financially dependent on the deceased should be given adequate provision in his or her Will. If you are a spouse, civil partner, child of the deceased or an individual who has been financially dependent on the deceased and you have been completely disinherited, you could challenge the Will.

Incorrect Will was used

For some people, updating their Will as circumstances change is a sensible option and the latest Will should cancel the previous Will by default. But if the executors are not aware of the new Will and they have acted on the old Will, then you could contest the (old) Will especially when the latest Will is found.

2. Complicated scenarios

Testamentary freedom, meaning you have the right to give your money to who you like, is upheld by the court time and again. Here are two scenarios under which your claim may not be successful unless you have strong evidence.

Someone has promised you something

It is fairly common to hear a loved one making a promise like your mom would give you her house when she passes, or your granddad would leave you £20k when he passes. When the Will is finally revealed, you are shocked to see that it doesn’t contain the promised made to you.

An unfair Will doesn’t automatically mean you can contest it. If you find yourself in this situation, you may be able to contest the Will if you have contributed financially to your mom’s house, or you have been financially dependent on your granddad. It will be up the judge to decide if you have a right to the estate that you are claiming against.

The complexity of a blended family

In this day and age, it is common for couples to separate and remarry. It is possible that one of your parents has remarried and died without a will or has left everything to your stepparent who then disinherits you.

If you are in this situation, you could contest the Will on the grounds of lack of financial provision, if you have been financially dependent on the deceased.

3. Who can challenge a Will?

In theory, anyone can challenge the validity of a Will. However, usually people who were closed to the deceased may choose to do so.

If you are contesting a Will because it does not give you reasonable financial provision, then you must fall into one of the following categories:

  • A spouse or civil partner
  • A former spouse or civil partner who has not remarried or entered into a new civil partnership
  • A child or a grandchildren
  • An individual who has been financially dependent on the deceased

4. The process of challenging a Will

Before you kick-start the process of contesting a Will, it is worth taking a minute to review the following points:

  • You have a valid reason like the signature was a forgery or the deceased was being bullied into changing the Will
  • You have evidence (medical records, witness statements) to support your claims
  • You have the legal right if you are contesting on the ground of financial provision
  • You do so within the time limit

Time limits

How much time you have to contest a Will depends upon the nature of the claim:

  • You have six months to make a claim from the issue of the grant of probate if you are contesting on the ground of Inheritance Act.
  • You have 12 years from the date of death if making a beneficiary claim against the estate.
  • You can make a claim at any time (no time limit) in the event of fraud, like when the executor has misappropriated assets.

We encourage you to call one of our local offices and discuss your situation with a qualified Will, Trust and Probate solicitor at Foys first. Once we have verified that you have a case, we can help you to submit a formal claim to the Probate Registry office. This claim will stop the probate process, meaning the deceased’s estate cannot be distributed unless the dispute is resolved.

5. How long does contesting a Will take

The process of contesting a Will in court could take years, which is why our Wills, Trust and Probate team at Foys works with you and together we aim to resolve the issues amicably with the estate of the deceased through mediation first. Mediation is less expensive than going to court, saving you time, effort and money.

While mediation is preferred, sometimes it does not work and the case will go to court. If this happens, you can be certain that our legal team at Foys will be with you every step of the way.

Before contesting a Will, call Foys Solicitors first

Contesting a Will is a potentially costly exercise and the estate you are claiming against might not have enough money to pay you by the time the process has gone through court. This is why our solicitors at Foys encourage you to come and discuss your case with us first. Let us give you an honest review so you know your options.

Aiming to reach an amicable agreement with the estate you are claiming against through mediation is also a sensible option. Mediation can save you time and money.

When it comes to cases with evidence to suggest that the deceased did not understand the document they were signing, they were unduly coerced at the time of signing, or fraud was present, you can count on us to protect your interests throughout the process.

To kick-start the discussions about contesting a Will, fill out our Online Form and we would be in touch soon.

Alternatively, you can call your local Foys Solicitors office:

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This post is not legal advice and should not replace professional advice tailored to your specific circumstance. It is intended to provide information of general interest about current legal issues.

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