On this page:
- What are the grounds for contesting a will?
- Can an executor challenge a will?
- Has the will been properly executed?
- Lack of mental capacity
- Undue influence
- Contesting a fraudulent will
- Can I challenge a will that fails to make reasonable provision?
- When can I contest a will?
- What happens if I am successful in challenging a will?
- Inheritance disputes claims and challenging a will
Can you contest a will?
Yes you can contest a will. There are a range of ways to do this, and this article outlines the key information you need to know.
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 will disputes or 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.
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.
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)
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
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.
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.
What does reasonable financial provision mean?
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’)
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.
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).
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.
Contentious probate means a dispute about how someone’s estate is sorted out after their death. Disputes about the will itself are considered contentious probate, but will disputes are not the only disputes that come under contentious probate. For instance, a dispute may relate to how the assets within the estate are disposed of, or distributed.
Ask the Executors of the will to give you a copy; they are not obliged to release the will but if you are a person connected to the estate and/or have a potential claim, the will would normally be released to your legal adviser.
After the grant of probate is issued, a will becomes a public document, which means anyone can apply for a copy. To see if a grant of probate has been issued, search for free at the Probate Registry on www.gov.uk/search-will-probate If it has been issued, the will is now public and it will be easy to get a copy online.
You can also set up a standing search with the Probate Registry for them to automatically send you a copy of the grant and the will if a grant of probate is issued at any time within six months of the date of the search.
Depending on the situation, you can also make an application to the court for an order to release a copy to you.
Yes. You need to get the probate court file number from the executor. Alternatively, you should be able to get it from the court by phone, online or by going to the court, just by providing the name of the person and the date of their death. Wills that go to the Probate Registry become public. These are the wills that are in place when people die. Previous versions of wills are not registered because they are invalidated by the new will; so previous versions are private.
Once an executor has started practical arrangements regarding the estate (called intermeddling), they can only be removed by a court order or settlement agreement reached at mediation or via negotiation. This applies even if it is the executor themselves who wants to be removed. If no practical steps have yet been taken, an executor can remove themselves easily by simply saying to the legal adviser involved, that they don’t want to do it. If someone else is trying to get them removed, it’s always better, if possible, to try mediation or negotiation to resolve the dispute, rather than going to court. If you do apply to the court, you will need to submit:
- a copy of the grant of probate which must be certified and sealed
- witness statement covering why you think the executor should be removed
- witness statement naming someone who you think should replace the executor and what your reasons are.
There needs to be a serious reason and evidence of misconduct. The courts will not allow a change for trivial reasons such as petty family arguments or relatively short delays. This is because the executor was named by the person who died as the person they wanted to undertake the role. Reasons for removal could include:
- conflict of interest causing the executor not to follow the deceased’s wishes
- serious incompetence such as severe mishandling of possessions
- physical or mental disability making it impossible for them to carry out the function
- using the funds or property for themselves or in ways which are significantly inappropriate
- absence of accounting records
- a criminal conviction
- refusing to abide by court orders.
Tees is here to help
We have many specialist lawyers who are based in:
Essex: Brentwood, Chelmsford, and Saffron Walden
Hertfordshire: Bishop's Stortford and Royston
But we can help you wherever you are in England and Wales.
Chat to the Author, Sara Stabler
Senior Associate - Dispute resolution & litigation, Cambridge officeMeet Sara
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