There are many ways to contest a Will – they are known as grounds for contesting a Will. Common reasons for challenging a Will include proving that it is invalid, or that the Will did not make adequate provision for dependants.
The process of contesting a Will is known as contentious probate. Family disputes over inheritance are common and often stressful. It’s a good idea to get advice from specialist contentious probate solicitors about how to successfully contest a Will. They can tell you if you have a realistic claim and the best way to move forward. Your solicitor will also make sure you follow all the correct procedures.
Common reasons for challenging a Will
There are a range of potential reasons to challenge a Will – read on for more information about each reason.
Challenging an invalid Will
You can challenge a Will if it wasn’t drafted correctly and there is a mistake as a result. Mistakes in Wills normally involve issues with signatures, witnesses and terminology within the Will itself. You might be able to challenge the Will if:
- it wasn’t signed by the testator
- the testator’s signature wasn’t witnessed by two people present at the same time as the testator signed it
- the people who witnessed the signature didn’t meet the requirements for doing so (there are strict rules about who can witness the signature on a Will)
Challenging a Will where there is a lack of capacity
The Will might be invalid if the testator didn’t fully understand or know about the contents of their Will, or those people close to them to whom they ought to have regard, or understand the approximate extent of their estate. You might be able to challenge a Will if you think that the testator was not of ‘sound mind’ when they gave instructions or executed the Will for example, you may be contesting a will due to dementia. The legal term for this is ‘lack of testamentary capacity’. To make a valid Will, the testator needs to:
- understand they were making a Will and the significance of doing so
- know the rough value of their estate
- understand the effect their Will would have
- not be suffering from any mental conditions which might affect their ability to make important decisions
Challenging a Will on the grounds of undue influence
Although what constitutes undue influence in a Will is more difficult to prove, you may be able to challenge the Will if you think that someone has coerced or influenced the testator into making the Will, which otherwise does not reflect their free will. This is called undue influence. It means that the testator didn’t feel able to exercise their own free will when giving instructions for the Will. It can happen if someone in a position of trust uses their position to exert pressure, coerce or influence the testator to leave their assets in a certain way. To prove there was undue influence, you will need to show that there is no other reasonable theory to explain the terms of the Will.
Challenging a fraudulent Will or forged Will
Contesting a forged Will involves showing that the Will is forged or some type of fraud took place during its creation or execution; in which case the Will could be declared invalid. You may be able to contest a Will if, for example, the testators signature was forged.
You might be able to challenge a Will if it does not make ‘reasonable’ financial provision for you. Normally, this only applies if you are a spouse or civil partner or dependent of the deceased, or one of the other eligible categories of claimants under the Inheritance Provision for Family and Dependents Act 1975. This type of claim is usually made by spouses, civil partners and dependants, who might be able to challenge a Will if they were:
- not mentioned in the Will
- not left as much as they need or expected to receive
- if the deceased passed away without a Will (‘intestate’)
Can an executor challenge a Will?
Yes, an executor/executrix can challenge a Will – but, to do so, they normally need to step down from their role in administering the estate. This is because the role of the executor is to carry out the deceased’s wishes and defend the Will. Understandably, challenging the Will makes it impossible for the executor to perform their duties in this regard. Therefore, it is not possible to contest a Will and remain executor/executrix of the estate.
When can I contest a Will?
To make a claim under the Inheritance Act, you have six months from the date of the Grant of Probate. The same time limit does not apply if you are contesting the Will but, it is sensible to proceed as soon as possible, to avoid adverse evidential issues and adverse tax or cost outcomes.
What happens if I am successful in challenging a Will?
When a Will is declared invalid it is normally replaced by the previous valid Will. If there is no earlier valid Will, intestacy rules will apply.
If you made a claim under the Inheritance Act the Court may change how the deceased’s assets are distributed (and go against the terms of the Will).
Inheritance disputes claims and challenging a Will
We know that disputes over wills, trusts and inheritance need to be handled with sensitivity. At Tees, we handle all inheritance disputes with the utmost care and sensitivity to potential family issues. We’re here to help you move forward and secure the best possible result in your situation.