How To Contest A Will
If you are a family member or disappointed relative unhappy with a will and are unsure on how to contest a will we can help you. We act for clients across the UK with Inheritance disputes and are one of the very few firms to genuinely specialise in contesting wills.
Whatever the problem we will try and help you, we have a proven track record in regard to successfully acting for clients in contesting wills, and advising relatives or deappointed beneficiaries on How to Contest a Will, so call us 0844 740 1637 to find out how we can help you.
A Guide To Contesting A Will
The starting point is always to obtain a copy of the will.
Typically, the will, will be with a solicitor, the executor or a family relative. If for whatever reason there is a refusal to disclose a copy of the will, then a Caveat can be entered. This involves an application to the probate registry and prevents probate from being issued for a period of 6 months. This gives more time time for a detailed investigation surrounding the will preparation to be undertaken. Often the issue of a Caveat is sufficient for a will to be disclosed, otherwise the Executor cannot administer the estate.
Once the will is obtained : what next ?
Typically once we have a copy of the will, we then seek information regarding the background cricumstances of the will. For example, who instructed the solicitor ? who was present ? did the solicitor check on the capacity of the testator when making the will ? often a full review of the solicitors file is necessary to understand fully the background of the will. Once these investigations have been undertaken, we can the advise on the merits of contesting the will. The most common grounds to dispute a will are :-
Invalid wills : is the will correctly executed ?
The law governing wills provides for a will to be valid it must be :-
- In writing and signed by the person making the will
- The person making the will intended by his signature to give to the will
- The signature must be made in the presence of at least two witnesses
- Both witnesses must be present at the same time as the will being signed
Common problems with wills
Despite the formalities of wills being clear we regularly see a variety of problems arising in that :-
Wills are not signed correctly in the right place
Sometimes from the will, it is not clear that both witnesses and the testator were not present at the same time as the will being signed. The wills act is very clear that both witnesses must be present at the time as the testator signing the will, if not the will is invalid, and an earlier will applies or the intestacy rules.
The witnesses may have been beneficiaries under the will
The witnesses to a will must not be beneficiaries, otherwise the gift to the beneficiary fails. The will remains valid but the gift passing to the beneficiary fail.
The original of the will has been lost
The probate registry will always insist on the original will when a probate application is made. If an original is lost a very specific application must be made supported by an affidavit addressing the loss of the original and who has been prejudiced by the loss. eg. who would inherit under the intestacy rules. We have a dedicated team able to advise on lost original will cases.
The will has writing on it
If a will has writing on it, the probate court will require evidence as to whether the writing arose before or after the will was signed. This can be crucial if legacy sums have been changed or crossed out.
The witnesses have signed at different times and not in the presence of the person making the will
The witnesses must both be present when the will is signed otherwise the will is not valid. Frequently, we encounter cases when wills are witnessed on different days by the subscrbing witnesses.
The wrong wills being signed in error
Great care should always be taken when signing wills, sadly it is not uncommon for the wrong wills to be signed. The supreme court had to deal with this case in the case of Marley -v- Rawlings involving a married couple signing the wrong wills.
Lack of capacity on the person making the will ( see below )
The person making the will must have understood of its contents, by having the mental capacity to understand the terms of the will. As we discuss below there are many cases made where there are doubts as the mental capacity of the person making the will.
Specific Grounds on How to Contest a will
Typically, once a will has been obtained, we find the majority of claims against estates//wills fall into the following categories :-
Claims for financial provision under the Inheritance Act 1975
The Inheritance Act 1975 enables certain classes of persons to apply to the Court for reasonable financial provision.
The persons able to make a claim are restricted and typically, involve spouses, ex-spouses, Co-habitee, Children or Persons that were in some way financially reliant upon the Deceased.
In summary, the Court has a wide discretion to award sums which it considers to be fair and reasonable having regard to all the factors in each case.
The Act lists a series of matters which it must have regard to including the age of the parties, financial needs, the size of the estate, any disabilities of the parties, assets of the parties as well as the level of support that was provided by the Deceased prior to their Death.
Lack of Capacity by the Deceased to Make a Will
In all cases the person making the will, must :-
- know he/she is making a will
- understand what property he/she has and who will inherit
- have the capacity to understand that he/she is making a will
Typically, when contesting a will on a lack of capacity this will frequently, involve a detailed review of the preparation of the will, and the deceased’s medical records, to see whether there are references to any medical conditions that may impact on the deceased’s ability to understand that they were making a will, for example dementia. Very frequently we see wills changed before the date of death when the deceased may have been very vulnerable.
These claims arise when the testator has effectively been forced into making a will.
Forgery or Fraud
Typically, these claims arise when the will is a forgery ie. the testator may not have signed the will
Proprietary Estoppel Claims ( otherwise known as Broken Promise Claims)
Claims when the deceased may have made a promise or assurance to leave financial provision which was relied upon often to the determinant of a person who then in turn suffers a clear loss.
Other Grounds on How to Contest a Will :-
- The Executor is Failing to Distribute the Estate reasonably
- The will and its terms are unclear
- There is a Mistake in the Drafting of the will.
Whatever your concern with a will, or whether you have questions on How to Contest a A will let us help you, call us now on 0844 740 1637