How to Contest a Will
There are provisions in place that enable a person to contest a Will. In order to make a claim, you need to have an objection to the Will on certain legal grounds . This may be as a family member or dependent you feel you have been left out of the Will, or that the Will itself is not a valid document.
Read on for our short guide on how to contest a Will.
1) Summary in 30 Seconds
- Wills can be contested in two ways, (1) you believe the Will to be invalid in some way or (2) you believe you were entitled to an inheritance from the deceased state which was not provided for you in the Will.
- Only family members and dependents of the deceased can contest a Will, and only on certain legal grounds.
- Contesting a Will can be complicated and expensive. Make sure you weigh up the costs versus the potential of a successful claim.
2) Can I Contest a Will?
A loved one has recently passed away suddenly. Shortly before their death, they were hospitalized and wrote a new Will. This Will has some drastically different instructions than the original one. You have been left an inheritance that is just a fraction of what you expected to receive.
A close friend has been a carer for a family member for the past ten years. They have lived with them and attended to their daily care. They were assured that after their loved one’s passing they would be able to continue to live in the property and would be provided for. However, the property was left to the deceased’s three children, and they want your friend to vacate the property immediately.
These are two people left distressed and heartbroken — they did not receive what they felt they were due or what they had been promised. Is there any recourse in these situations?
You may feel like you have “rights” to a portion of the deceased’s estate. However it is not so simple. Under the law of England and Wales, a person retains the right to distribute the majority of their estate how they see fit. This is the case even if their choices seem odd or illogical. It is up to the courts to weigh the merits of your case and see whether your claim has legitimacy.
Before you get to that point, you need to make sure you have a viable claim on sufficient legal grounds. Contesting a Will is a lengthy and complicated process, so you want to be very sure that this is definitely a path worth going down, with a high potential for a successful claim.
You can contest a Will on certain legal grounds:
- The testator’s capacity. A Will can be challenged on the basis that the testator did not have mental capacity to write a Will. In this instance, that means that they didn’t know what they were doing or the effect that it would have. This could happen in more advanced stages of Dementia or Alzheimer’s.
- A lack of knowledge or approval. The testator did not have sufficient knowledge as to what their Will contained, or didn’t approve the contents. On the surface, the Will may appear to fulfil all the legal requirements, but you may have a suspicion that the testator was not aware of what the Will contained. This could happen if, for example, the testator had some sort of physical limitations, or if they have relayed instructions to someone else who recorded them down incorrectly.
- Undue Influence. The testator was coerced or pressured into writing the Will. This can take several different forms, making it difficult to prove sometimes. It could be the form of physical intimidation or bullying or more subtle tactics of manipulation or lying or “gaslighting” the testator.
- Fraud. The Will document was not created by the testator. For example, a forged signature.
- Execution. The Will does not fulfil the legal requirements for a valid Will.
Not everyone in the testator’s life has the ability to contest their Will. You can contest if you are:
- A Spouse or Civil Partner
- Other direct family member – children, grandchildren, etc.
- Cohabitee living with the testator for more than 2 years.
- You have been named as a beneficiary in the Will.
- You were financially dependent on the testator.
3) Provisions For Family Members
You may find that the Will is valid but you are massively disappointed by the provision left for you in the testator’s Will. If you had been promised or had an expectation of an inheritance, you might have felt a sense of financial security in the knowledge that you had a sum of money coming your way. It can turn lives upside down when a prospective inheritance vanishes.
Inheritance (Provision for Family and Dependants) Act 1975 provides a way for family members and other dependents to petition the court to examine their case and potentially order for a sum of the deceased’s estate to go to this individual.
This course of action is only available to a select group of people (such as the deceased’s close family members and others who were financially dependent on them), and situations, such as:
- There was no provision or an unreasonable provision for them in the Will.
- They were promised something when the testator was alive that was not provided for in the Will.
- They were going to receive a gift from the testator that was not carried out in the Will.
- They were owed money by the testator.
The court has the power to make a decision at their discretion as to whether you are entitled to something from the deceased’s estate. They will examine the particulars of your circumstances, such as your financial standing, living situation and so on along with any evidence you provide to support your claim. They can then award either a lump sum from the estate or spread it out over a series of payments.
4) How Much Does it Cost?
Even if you are certain that you have a successful claim, it is important to consider the financial impact of taking action. Contesting a Will can be very costly, so you need to be sure that it is worth the expense.
Why is it expensive to contest a Will? There are a number of factors which can contribute to a costly claim. More often than not it will be a complicated process. You will need to instruct a solicitor who specialises in this area to look into your claim and see if it is viable or not. Most claims then will go through Mediation in hopes of settling and avoiding a court trial. Sometimes this drags on and the costs can mount up. If no settlement can be reached through mediation, it will proceed to a court hearing. It can take considerable time and expense to investigate a contested Will. For example, experts may need to be called in to verify aspects of the Will that are in question.
Cases which proceed to court can eat up a lot of the money that you are hoping to be awarded. Therefore, it is really important to weigh the costs with the potential of winning the case.
Contesting a Will can also have a steep emotional cost. Along with the work of building your case and navigating the legal system, you may risk upsetting or alienating family members who aren’t happy that you are contesting the Will. This can have a significant toll on you emotionally and cause stress and anxiety. Make sure you are prepared for potential family conflicts and that the risks associated with this are worth it to you.
5) Talk to a Solicitor
This is a complex issue that you don’t want to try and tackle unsupported. It is recommended to talk with a solicitor who specialises in this area, who can advise you fully and potentially help you build a case to take to court.
It is pointless to try and make a claim that has no merit. A solicitor will examine the particulars of your case and assess whether you have a viable claim or not, as well as inform you of the potential costs involved and your overall chances of being awarded a sum of money from the estate.
If you are upset or angry at the apparent injustice of not being provided for in this way, your judgement may be clouded and you may not be able to accurately appraise the pros and cons of contesting the Will. It is important to have an unbiased third-party who, along with their legal expertise, can help you look at your case with clarity.