When someone passes away, their wishes are usually set out in a will, including who should inherit their estate and assets.

But what happens if those wishes don’t seem right, the testator did not have mental capacity when the will was made, or you believe the will does not reflect what the person truly intended?

This is a situation many families face, and it can raise difficult questions about whether a will can be challenged and what your options might be.

In this article, Dispute Resolution Solicitor, Anthony Eaton, outlines:

• The reasons wills are contested
• The key grounds for contesting a will
• Who may be able to bring a claim
• The costs of contesting a will
• The risks involved in contesting a will

Can a will be contested?

Yes a will can be contested.

You can contest a will in different ways depending on the circumstances. The most common claims arise where someone believes the will is not valid. This can occur if it has not been executed properly, or where the testator did not have the required mental capacity at the time of making the will, did not understand and approve the contents of the will or may have been subject to undue influence.

If you are concerned about the validity of a will, you can contact one of our expert contested will solicitors on 01202 499255.      

What are the reasons for contesting a will?

An individual is generally free to leave their estate to whoever they choose. However, sometimes people's expectations of what they believe they ought to receive, are not the same as what is contained in the will.

In some cases, this may suggest that the will was not prepared correctly or does not reflect the true wishes of the deceased. In these circumstances, there may be valid reasons to challenge the will.

It is important to ensure that your will & estate is planned correctly. You can find out more about ensuring your will is prepared correctly here.

What are the grounds for contesting a will?

There are several grounds on which a will can be contested. The most common examples of these are:

Capacity

A will may be challenged if the testator did not have the required mental capacity to make a valid will at the time it was created.

Undue influence

A claim may arise where the testator was subject to undue influence when making the will.

Lack of Knowledge and Approval

A claim for want of knowledge and approval can be made if the testator did not understand or approve the contents of the will when signing it.

Coercion

A will can be contested if the testator was coerced into making it in a particular way.

Execution

A will may also be contested if it has not been executed correctly in accordance with Section 9 of the Wills Act 1837.

It is important to ensure that a will is executed properly. You can find out more on our estate administration page.

Inheritance Act Claims and Proprietary Estoppel claims

There are also other claims which can be made against an estate without disputing the validity of the will. These claims are usually brought under the Inheritance (Provision for Family and Dependents) Act 1975 or in Proprietary Estoppel.

Who can make an Inheritance Act claim?

An Inheritance Act claim can be made by certain individuals who have not been provided for in a will but were being maintained by the deceased.

What are Estoppel claims?

Estoppel claims are when a testator promises someone they will provide for them in their will, that person acts to their detriment by relying on that promise, but the deceased then does not fulfil their promise in the will.

Who can contest a will?

Anyone who stands to benefit from a will being invalid can challenge it. This often includes those provided for in a previous will, but have been excluded or are due to receive reduced inheritance under the contested will. These people are often referred to as disappointed beneficiaries.

In a Proprietary Estoppel claim, the person to whom the promise was made but not fulfilled could bring the claim.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 are limited to specific categories of people under the Act, which are:

• The spouse or civil partner of the deceased
• The former spouse or civil partner of the deceased (provided they have not remarried or entered into a new civil partnership)
• A person who was living with the deceased in the same household for two years prior to their death, as if they were their spouse or civil partner
• A child or person treated as a child of the deceased
• Any person who was being maintained wholly or partly by the deceased immediately prior to their death

How much does it cost to contest a will?

The cost of contesting a will or bringing an Inheritance Act or estoppel claim, will depend on how far the matter progresses.

These claims often involve extensive evidence gathering, including:

• Reviewing will files,
• Assessing medical records and,
• Taking witness statements which need to be done at the outset.

For more complex cases, costs can reach several thousand pounds before a letter of claim is sent.

If settlement is not reached early, mediation is often attempted and can cost around £5,000 or more.

If the case proceeds to a contested trial, costs can reach £75,000 or more. These costs will vary depending on the complexity of each case, number of witnesses and whether expert evidence is required.

We can consider various payment options in relation to contentious probate claims to assist you with deciding whether to bring your claim.

When can a will be contested?

A will can only be contested once the person who made it (testator) has died. Before this point, the will has no legal effect and cannot be challenged.

If you’re concerned about a will, getting legal advice early can help you understand your options and take the right steps. Speak to one of our Dispute Resolution experts on 01202 499255.

How long can a will be contested for?

Is there a time limit for contesting the validity of a will or bringing a proprietary estoppel claim?

There is no statutory time limit for contesting the validity of a will or for claims in Proprietary Estoppel.

However, delay can make a potentially successful claim more difficult. Evidence may be lost over time, witnesses may be harder to locate, and the estate may be distributed.

Where there is an exceptionally long delay in commencing a claim, this can also be used as a defence.

What is the time limit for an Inheritance Act Claim?

Claims under the Inheritance Act (Provision for Family and Dependants) Act 1975 must be issued at court within 6 months of the date of the Grant of Probate.

If not, they will be time barred, and the court is only likely to allow claims issued after 6 months in exceptional circumstances.

Why is it important to act quickly when contesting a will?

In any claim which seeks to challenge a will or the distribution of an estate, time is of the essence and you should act quickly if you believe you have a claim.

If you suspect you have grounds for a claim but the grant of probate has not been issued, you can apply to enter a caveat at the Probate Registry for a small fee.

A successful application will prevent the immediate issue of the grant of probate and can provide some valuable time to gather evidence.

What are the risks of contesting a will?

As with any litigation, there is a risk that you may not win, even if your case appears strong.

If the claim is unsuccessful, the court may order you to pay some or all of the other party’s legal costs, as well as your own. These costs can be significant.

Is it worth contesting a will?

Whether it is worth contesting a will, or making a claim on an estate, will depend on the strength of the evidence and the value of the estate.

These claims can be expensive and stressful. Therefore taking legal advice at an early stage is recommended.

With the right approach, these claims can often be resolved without going to court, for example, through offers of settlement or mediation.

Specialist Contested Wills Solicitors

If you believe a Will isn’t valid it’s important that you get clear advice on what to do next. Our specialist solicitors have extensive experience in contesting Wills and are able to offer tailored advice to your specific situation.

We offer a free initial chat to all new clients, you can get in touch with a member of the team on 01202 499255 or by filling out the form.