Tim Russ
Last Will And Testament

Challenging or contesting a will

Challenging or contesting a will

When a will is challenged or contested, it is called “contentious probate”.  We have a number of experts within our Private Client team who deal with contentious probate matters on a regular basis.  Their collective knowledge and skills bring clarity to the often complex situations surrounding contested wills.

Who can contest a will?

There are regulations that govern who can contest a will. The most common challenges made are by blood relations – children, siblings or parents.  Others who can contest a will are:

  • Someone who was promised an item or bequest (verbally or in writing), but which was not detailed in the will
  • A creditor who is owed money by the estate
  • A beneficiary named in an earlier will
  • Someone who relied on the deceased for financial support or accommodation
  • A spouse (whether they were living together or estranged at the time the will was written)

When can you challenge a will?

There are three main reasons why you may need to speak to our trusted team:

  1.   you do not think you have been provided for properly in a will (or in a matter of intestacy if there is no will);
  2.   you do not think the will is valid (see reasons below);
  3.   someone is contesting a will and you need advice on defending the claim.

The reasons for contesting a will are limited.  Just because you disagree with what a will says does not automatically mean you can challenge it.

You can challenge a will when:

  • the will is a forgery;
  • the person who made the will did not have the capacity to do so;
  • the person making the will lacked knowledge;
  • the person making the will was influenced in their decisions;
  • the will was not properly executed;
  • the will contains errors that must be rectified.

Forgery

A will that has been altered in respect of the provisions it contains, its dates or any of its signatures, will be considered a forgery.

Lack of capacity

Lack of capacity is one of the more common reasons for contesting a will.  It comes into play when someone believes that the person making the will does not have the capacity to understand what they are doing.

Lack of knowledge

The person making the will must have knowledge and approve of its contents for it to be valid.

If someone believes a will was made without this knowledge, they must show that there is reasonable suspicion that this is the case.  There could be any number of reasons why someone may believe that the testator (the person in whose name the will is made) did not have knowledge.  Some of the more common ones are:

  • Spelling mistakes or the use of language not associated with the testator
  • If the will contains untrue statements
  • If the will makes provision for someone who was not known to the testator
  • There is evidence the testator lacked knowledge when he made the will
  • Unusual behaviour by the testator when the will was made
  • A home-made will that has been made without professional advice
  • Other unusual circumstances, such as the introduction of a solicitor by a beneficiary who has no previous contact with the testator

If the testator has a disability such as blindness, paralysis or is deaf and/or dumb, this does not, of course, mean that they do not have an understanding of what their will contains.  The courts would require evidence to back up any claims.

Undue influence

If a testator is under undue influence when they are making their will, it may be invalid.  Influence could take a number of forms, for example: bullying by violence or verbal intimidation or trying to influence the testator by planting stories in their mind by telling them things that are untrue.  It is often difficult to prove undue influence as, by its very nature, it is something that takes place ‘behind closed doors’.

The will was not properly executed

For a will to be valid it must be signed in accordance with strict rules.  These say that it should be signed in the presence of two witnesses, who must sign the will in the presence of the testator.

The will contains errors

Just because a will contains an error, it does not make it invalid; in certain cases, errors can be rectified.  These errors could include a mistake in taking the instructions of the testator.  Usually in these cases, reference will be made to the papers of the solicitor or other professional who made the will to ascertain the instructions that were given.

How to challenge a will

If you are considering contesting a will, it is very important that you seek professional advice as early as possible. 

One of the first steps may be to issue a caveat to the Probate Registry office. This means that probate cannot be granted, and the deceased’s assets cannot be distributed without informing the person who lodged the caveat.  The caveat lasts for six months, though it can be renewed if things are taking longer to resolve.

Ideally a will should be challenged before probate is granted.  It can be challenged after probate has been granted, but this often causes complications as the executors (those who are nominated to carry out the instructions contained in the will) may have already started to dispose of assets.

How long does it take to challenge a will?

It is very difficult to set a timescale on contentious probate work.  If a matter is particularly complicated, it can take years before it is finally settled.  Simple cases, however, are generally settled much more quickly.  When you speak to our team, they will be able to give you an indication of how long your particular case may take.

If I challenge a will, will I have to go to court?

As in many legal matters, court is one of the last options in the process.  Attending court can be costly and time consuming.  Most solicitors will try to resolve issues via discussion and mediation before things get that far.  They will try to find common ground between the parties and come to an agreement which is acceptable to both sides.

Next steps

If you are considering challenging a will, please speak to one of our trusted advisors listed below.

Our recognised experts will advise you on your individual circumstances and explain your options going forward.  They have extensive experience of contentious probate work and have helped resolve hundreds of difficult cases over the years. 

 

 

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