Private Client and Tax

FAQs - contesting a will

In England and Wales, we have complete freedom of testamentary disposition. In other words, we can, in principle, leave our assets to whoever we wish by making a will.

Whilst a will is considered to be the “final say” by a testator, there are very strict rules about the will-making process. If these are not adhered to, or if there are concerns about a testator’s state of mind at the time the will was prepared, or about whether it is a true reflection of a testator’s wishes, it may be possible to challenge or contest the validity of that will.

Below are some frequently asked questions about wills generally, the grounds for contesting a will, and the procedure, consequences and costs of making such a challenge.

What is a will?

A will is a legal document which sets out how a person wants his or her assets to be distributed on his or her death. A person who makes a will is known as a testator (or testatrix).

If the deceased left a valid will, then his or her estate will be administered in accordance with the terms of that will.  The people given authority to administer the estate are called executors and they will apply to the Probate Registry for a Grant of Probate in order to enable them to administer the estate.

What happens if there is no will?

If the deceased died without leaving a valid will, then his or her estate will be administered in accordance with the intestacy rules which are rules set down by statute as to who inherits what proportion of the estate.

Those entitled to inherit under the intestacy rules include a spouse, civil partner and children. The rules also provide for parents and siblings to inherit where there is no surviving spouse, civil partner or children.  Currently there is no provision in the rules for unmarried cohabiting couples. A surviving partner will not be entitled to anything from their partner’s estate.

Administrators, the people with authority to administer the estate, will apply to the Probate Registry for a Grant of Letters of Administration in order to enable them to do so.

Can I contest or challenge a will?

Yes, in certain circumstances it is possible to contest the validity of a will if there is a valid legal basis for doing so. There are a number of grounds for contesting a will as detailed below. Claims of this type are known as “contentious probate claims”.

If you have concerns about whether any of the following situations apply to the deceased’s last will, then you should seek legal advice.

Lack of due execution
To be valid, a will must comply with section 9 of the Wills Act 1937:

  • the will must be in writing and signed by the testator (or by someone else in their presence who has been directed to do so by the testator);
  • it must appear that the testator intended by their signature to give effect to the will;
  • the testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time;
  • each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness.

There is a legal presumption that a will has been validly executed unless there is evidence to the contrary which casts doubts on any of the above requirements.

Lack of testamentary capacity
A testator must be “of sound mind” when making a will.  The legal test for testamentary capacity is set out in the 1870 case of Banks v Goodfellow. To have the necessary capacity a testator must:

  • understand that he / she is making a will and the effect of that will;
  • know and understand the value of his / her estate;
  • understand the consequences of including and excluding certain people in their will who they ought reasonably to include;
  • not be suffering from any “disorder of the mind” which may influence his / her views.

In considering such claims, medical evidence is key, whether by way of medical records or by psychiatric assessments by experts based on their opinion of the testator’s state of mental health at the time they made their will.

Undue influence
There is no presumption of undue influence (as there is with some other classes of gift) just because one person in a position of trust receives assets from another person.

Similarly, mere influence by a person over a testator is not sufficient. For a claim of this type to succeed, it is necessary to show that the influence over the testator was “undue”, namely that there was coercion, manipulation, deception or intimidation by someone in order to influence the terms of a testator’s will.

Such coercion can be physical or psychological and it will be for a court to decide whether the behaviour amounts to undue influence.

Lack of knowledge and approval
A testator must know that he / she is signing a will, what its contents are and approve the contents. 

Even if a will appears to be validly executed and the testator had the necessary testamentary capacity, it may be possible to contest the validity of a will on this ground if there were suspicious circumstances surrounding the preparation and execution of the will such as the main beneficiary being very involved in its preparation.

Fraud and forgery
Fraud and forgery can be very difficult to prove when contesting a will. 

Forgery cases most frequently arise where there is an allegation that the signature or other writing on the will is not that of the testator and that someone else has signed on his / her behalf. In those cases, the evidence of forensic handwriting experts is key.

I think that the will is valid but I have not received what I expected. Is there any other claim I could bring?

Yes, there are two other possible contentious probate claims that may be appropriate for you:

  • Claim under the Inheritance (Provision for Family & Dependants) Act 1975
    Firstly, you may be able to bring a claim under the Inheritance (Provision for Family & Dependants) Act 1975. This Act allows certain categories of applicant to bring a claim against an estate where 'reasonable financial provision' has not been made for them either under a will or intestacy.

The categories of potential applicant include a spouse or civil partner, a former spouse or civil partner who has not remarried or entered into a new civil partnership, a child of the deceased (including an adult child), anyone treated by the deceased as their child, such as a step child, anyone who, for the two years immediately before the death of the deceased was living with the deceased as husband and wife (or civil partner), or anyone who was financially dependent on the deceased immediately prior to the deceased’s death.

The court will consider a number of factors in order to decide whether 'reasonable financial provision' has been made for you and if not, what provision to order.

You should seek legal advice as soon as possible about whether such a claim is appropriate and whether there is any merit in contesting a will. Claims under this Act must be issued at court within six months of the date of the Grant of Probate or Letters of Administration.

Please see our FAQs on Inheritance Act claims for more information.

  • Proprietary estoppel
    Secondly, you may have a claim for proprietary estoppel if the testator gave an assurance or promise to you during his / her lifetime that you would receive the estate (or part of the estate), that you relied on that promise or assurance and in doing so you suffered some detriment or disadvantage.  If you do not receive the promised gift in the testator’s final will, you may have a claim.

How should I begin the process of contesting a will?

You should seek legal advice from a solicitor as soon as possible. Claims to contest or challenge the validity of a will can be costly and very emotionally demanding as by the very nature of this type of dispute, they are likely to involve arguing with family and friends.

It is important therefore to consider what the outcome will be if a will is found to be invalid. If a will is found to be invalid for any of the above reasons, then the estate will be administered in accordance with the terms of the deceased's previous valid will or, if there isn’t one, in accordance with the intestacy rules.

Therefore, if you do not benefit from the previous will or intestacy, you may be advised that even if a claim has legal merit for one of the grounds detailed, there may be no practical reason to pursue it.

As an initial step you may be advised to apply to the Probate Registry to enter a caveat which will prevent the executors or administrators from obtaining a Grant and administering the estate. This will allow further time in which to make investigations as to the circumstances surrounding the preparation and execution of the will which may include obtaining the deceased’s medical records and information from any solicitor instructed in relation to the preparation of the will.

Are there any time limits?

A will does not take effect until a testator has died. Therefore, whilst you may have concerns about the validity of a will during a testator’s lifetime, no claim to contest its validity can be pursued until the testator has died.

Claims contesting the validity of a will should ideally be brought before a Grant of Probate is issued in order to ensure that the assets in the estate cannot be distributed until the dispute is resolved. Lodging a caveat at the Probate Registry will prevent a Grant being issued.

Generally, a claim by a beneficiary against an estate must be brought within 12 years of the death of the testator (except in the case of fraud where no time limit applies).
 
Claims under the 1975 Act need to be issued within six months of the date of the Grant of Probate.

Will I need to go to court?

We aim to resolve matters by negotiation, mediation or other methods of alternative dispute resolution where possible and in those circumstances, you would not need to go to court when challenging a will.

You will only need to go to court if your matter proceeds to a full trial and in those circumstances our solicitors will provide you with full support.

Who pays the legal costs of contesting a will?

During the course of a dispute each party is responsible for his or her costs.

If the parties settle the dispute between themselves, then they can agree between them who should pay the costs.

If the matter goes to a trial and is decided by a judge, then the judge will also decide who should pay the costs of the dispute. The usual rule is that the losing party will pay the winning party’s costs, although on some occasions the court can order that costs be paid by the deceased’s estate.

The court will decide not only who should pay the costs but also the amount of cost that a party should pay another; this is determined by a procedure known as assessment.  In practice, it is unusual for a party to recover all his or her costs from another party.


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