Contesting a Will

It’s crucial that we act quickly before the executors begin administering the estate. Assuming you have good grounds to contest the Will, we will enter a caveat to buy us time to fully investigate the merits of your claim before the estate can be administered under the terms of the Will.

We will need a copy of the Will, any documentary evidence you have which supports your claim and details of potential witnesses that can assist. You will also need to explain the background to the will, including any relevant conduct, promises made to you by the deceased and so on.

We will then contact the personal representatives informing them of your claim. We would hope to secure a settlement to avoid any expensive and time-consuming litigation, but if litigation becomes unavoidable, we will start formal proceedings to protect your interests.

While we will take an aggressive approach to your claim to resolve it swiftly and effectively, we will also work with the other side with a view to reaching a settlement to avoid litigation. That may involve mediation or other forms of alternative dispute resolution and we will discuss these routes with you.

Anyone who is an ‘interested person’ can contest a Will. This would normally be the spouse/civil partner or cohabitee of the deceased, a child (including adult children) or anyone else who may be mentioned in the Will. Any person who was financially dependent on the deceased can also contest the Will, as can an executor of the Will.

In cases where a previous Will forms part of the bigger picture, a beneficiary mentioned in that earlier Will could also bring a claim.

We understand how unfair it can seem when you believe you should have been left something under someone’s Will. However, to bring a formal contested Wills claim you must have one or more of the following legal grounds on which to so:

1. Lack of mental capacity – The law says a Will-maker must have ‘testamentary capacity’ to make a valid will. In practical terms, this means they must be of sound mind and understanding of what they were doing when the made the Will and the effects of it. That includes an appreciation of the impact of the Will’s terms on those who are included (or excluded) by their Will. Having a mental disorder or a physical condition affecting the brain at the time of making the Will can easily lead to a claim. And the UK’s ageing population means there is an increasing risk of contested Wills claims based on lack of mental capacity.The number of dementia and Alzheimer’s suffers in the UK is growing rapidly – in 2019, there were more than 850,000 people with dementia in the UK according to the Alzheimer’s Society. The majority of those were in England. By 2025, the numbers are expected to reach 1m.In circumstances where someone with dementia or Alzheimer’s makes a Will, there is the potential for a claim based on lack of mental capacity and legal advice should be taken.
2. Invalid execution – A Will that is not properly signed in accordance with strict legal requirements is invalid. The law states that a Will must be signed by the testator in the presence of two witnesses who must also sign the will in the presence of each other and the testator. The covid-19 pandemic has not only led to a rise in the numbers of Wills being made but has also caused significant logistical problems for people executing their Wills. This is because they must still be executed in a legally compliant manner – even though strict social distancing measures are in place.For that reason, the usual legal requirements have been temporarily relaxed so that a Will can be validly executed using remote electronic witnessing. However, there is strict guidance on how remote signings are to be carried out and if you doubt the validity of a Will, take legal advice. The likelihood is, there will be a significant number of contested Wills as a result of covid-19.
3. Lack of knowledge and approval – If you think a Will is suspicious, there may be grounds to set it aside on the basis of ‘want of knowledge and approval’. For instance, it may be a ‘DIY’ will containing words, phrases or other features that were uncharacteristic for the testator.
4. Being unfairly disinherited – Someone who is unfairly cut out of a Will may be able to bring a claim. The courts are increasingly allowing claims by disinherited adult children, particularly where the claimant can prove that a parent promised to leave an asset, such as property, to them on their death. Such claims are complex and early legal advice is therefore crucial.
5. Undue influence, forgery or fraud – Where the circumstances indicate the testator was put under pressure or coerced to make their Will, or there is evidence they were defrauded or the Will itself is a forgery, a prompt claim should be brought.
6. Inadequate financial provision – Anyone who was financially dependent on the deceased at the date of death can bring a claim for reasonable financial provision. The amount to which they are legally entitled is a matter for the court to decide, but our experienced inheritance claims solicitors can provide important guidance on what you could expect to receive.

Depending on your claim, we might only have a matter of months to start formal proceedings, so it’s vital to contact us quickly.

• Dependency claims – If you’re a dependant considering a claim for financial provision out of the estate, you only have SIX MONTHS from the date the grant of probate was issued to lodge a formal claim. After the six months has expired, it is highly likely you would lose the window in which you can bring a formal claim.
• Beneficiaries – If you’re a beneficiary, you have 12 years from the date of death. In practice, you must still act fast otherwise it can be harder to prove the merits of your claim.
• Breach of trust – If you have a claim against the executors on the basis that the estate has not been properly distributed, depriving you of your full entitlement – you have SIX YEARS to bring a claim.
• Fraud – There are no time limits to bring a claim based on fraud.

On the basis that you have good reasons to contest the Will, a crucial first step is to enter a caveat with the probate registry on your behalf. This effectively pauses probate in its tracks and buys us crucial time to gather the information for your claim. ( NB: a caveat is not appropriate if your claim is under the 1975 Inheritance Act).

Once the caveat has been lodged, the grant of probate will not be issued, which means the executors (also known as the personal representatives) cannot administer the estate. We will then have six months in which to investigate your claim and examine the circumstances of the Will in more detail.

We will then be able to advise you on the merits of your claim and whether you have legal grounds to make a formal claim.

The expense of contesting a will varies significantly depending on many factors, such as whether your claim can be settled quickly. If it becomes apparent that litigation will be necessary to protect your interests, the case may be protracted and expensive because we will need to undertake considerable work for you.

Most claimants are private paying clients, so it is advisable to check any insurance policies you have to see if it includes legal expenses insurance which could cover the costs of bringing a claim if you lose.

Unfortunately, legal aid is not available for contested wills claims.

If your claim reaches the courts, the losing party will normally be ordered to pay the winner’s legal costs. In some cases, some or all of those costs could be met out of the estate itself, for example, if the judge forms the view that it was the deceased’s conduct that caused the legal problem in the first place.

It is always advisable to act promptly where there is a potential claim so that a caveat can be entered at the probate registry before the grant of probate is issued.

After the grant has been issued, you can still bring a claim. While we cannot halt the grant of probate, we can write to the other side with our intention to make a formal claim on your behalf. By threatening legal proceedings, the executors will be on notice of your claim and should pause any distribution of the estate assets pending resolution of your claim.

If it becomes necessary, we can ask the court for an injunction to prevent the distribution of the estate to ensure your interests are protected.

Contesting a Will after the assets have been distributed can be difficult, but if you have a solid legal basis we will guide you through the process and take decisive action on your behalf. Sometimes, it becomes apparent that an executor has wrongly or improperly distributed estate assets depriving you of what you were fully entitled to.

Once the assets have been distributed it can be tricky to claw back what you are legally entitled to, but with a strategic approach, we can take the steps necessary to bring your claim.

If you are considering legal steps to challenge the Will on the basis that you are entitled to some (or perhaps more) of the estate, speak to our specialist solicitors.

Around half of contested wills cases are thought to settle before they reach the courts, and of the other half (where litigation becomes necessary) – only a tiny percentage (around 2%) get to the final trial hearing.

The stronger your case, the more likely we can work towards an early settlement before court proceedings become necessary.

• Instruct a specialist Wills solicitor to draft your Will, rather than a cheap but unregulated unqualified Will-writer.
• If (which is likely in the covid-19 era) you must execute your Will without your solicitor, ensure you fully understand the instructions we provide you so that you be sure it’s validly executed.
• If you are concerned your Will could be challenged on grounds of testamentary capacity, see if your doctor can confirm you had the required capacity when you made your Will.
• Keep your new Will in a safe place and destroy any previous Wills.
• Tell your executors and your loved ones where they can find a copy of your latest Will.