How to contest a Will
If you are unhappy with the contents of a Will or believe it does not reflect the true wishes of the deceased, it may be necessary for you to contest the Will. This can be a complicated and potentially contentious process, so it is important to have sensitive, practical legal support from the outset.
Tayntons’ disputed Wills solicitors, based in Gloucester, have many years’ experience helping clients to contest Wills and resolve the resulting inheritance disputes. Our aim is to keep the process of contesting a Will as free from conflict as possible and in many cases we are able to resolve these matters amicably while ensuring your rights are respected.
We will be happy to discuss your case with you and provide an honest opinion on whether we believe you have strong grounds for contesting the Will in question. We will then review your legal options with you and support you with any legal action you wish to take to achieve a fair outcome.
Please be aware that there are strict time limits for some types of claim, so you should not delay in seeking advice about your position.
If you need to contest a Will, please speak to one of our disputed Wills solicitors now by calling 0800 158 4147 or request a call back and a member of our team will be in touch promptly.
Common questions about contesting Wills
The following are some of the most frequently asked questions people have about contesting a Will, broken down into key subject areas for your convenience.
Grounds for contesting a Will
What are the grounds for contesting a Will?
In order to contest a Will, you will normally need to show that one of the following conditions applies:
- The person creating the Will lacked mental capacity
- The Will was not executed correctly e.g. it was not signed or witnessed properly
- The deceased did not have proper knowledge or approval of the Will’s contents
- The deceased was under undue influence when creating the Will
- The Will is forged or otherwise fraudulent
- The Will being used is not the most up-to-date version
- You were a dependant of the deceased and the Will does not make ‘reasonable provision’ for you
- The Will was created when the testator was single and they subsequently married, making the Will void
- There were errors with the way the Will was prepared e.g. clerical errors in the writing of the Will or failure to understand the testator’s intentions by the Will writer
Any type of Will challenge can be complicated, so it is important to get expert legal advice as soon as possible.
How do you prove someone lacked mental capacity when making a Will?
Showing that someone was not ‘of sound mind’ (i.e. that they lacked mental capacity) when making a Will can be challenging. You will need to provide strong evidence to back up this claim.
In general, someone may not have been of sound mind if they were incapable of understanding one or more of the following:
- That they were making a Will
- The contents of the Will they were making
- The effects of the Will they were making, including how it would impact people who might ordinarily be expecting to benefit from the Will
- The extent of their assets
There are a number of reasons someone might be considered to have lacked mental capacity, including if they were suffering from a condition such as dementia or had a psychiatric condition that affected their ability to understand or make decisions about their estate.
Types of evidence you might need to rely on to show someone was not of sound mind may include:
- Medical records
- Expert opinions from medical specialist e.g. the testator’s GP
- Written statements from people who interacted with the testator around the time that the Will was created
- Prescriptions for psychiatric medication
What counts as a Will not having been executed properly?
When people talk about a Will being ‘properly executed’ they mean that the right legal steps have been taken to ensure the Will is valid. If a Will is prepared by a solicitor and signed and witnessed under their supervision, this should not normally be an issue.
However, with many people relying on DIY Wills, it is not uncommon for vital steps to be missed or carried out incorrectly, meaning a Will could potentially be invalid.
For a Will to be valid, it must:
- Be in writing
- Be signed by the testator in the presence of two witnesses
- Be signed by the two witnesses in the presence of the testator
- Use witnesses who are not beneficiaries of the Will or the spouse/civil partner of a beneficiary
If you believe there is an issue with any of these points, it could be grounds to challenge the validity of a Will.
How do you prove someone did not have proper knowledge or approval of a Will?
If the testator was considered to have mental capacity and the Will was properly executed, it will generally be assumed by a court that the testator had proper knowledge of the contents of the Will and approved of those contents.
However, it may be possible to challenge this assumption under certain circumstances. Examples of situations where there may be doubt that the testator knew or approved of the contents of a Will include:
- Where the person who prepared the Will stands to benefit from the Will
- Where the Will makes bequests that seem unreasonable e.g. leaving their full estate to someone they barely knew
If a challenge is brought against a Will on the basis that the testator did not know or approved of the contents, it will be for those defending the challenge to prove that this is not the case.
How do you prove someone was under undue influence when creating a Will?
Proving that a testator was under undue influence when making their Will can be very difficult. The burden of proof is on those bringing the challenge and producing evidence of undue influence is not always easy.
Ultimately, you will need to show that the Will does not reflect the true wishes of the testator, but those of another person or persons. What exactly qualifies as undue influence will depend on the circumstances, but may include threats of violence, blackmail and other types of abusive behaviour.
How do you decide which is the most up-to-date version of a Will?
It is always good practice to record on a Will the date that it was signed. This can avoid any confusion over which is the most recent version if more than one Will is found to exist after the testator passes away. This also goes for any codicils that modify a Will.
If there is more than one Will and they are not dated, a court will usually be required to decide which to use.
What is Will fraud?
Will fraud generally refers to one of two issues:
- The testator made the Will based on false information deliberately given to them by another party or parties.
- The Will was prepared and/or signed by someone other than the testator.
Examples of situations where a Will might be based on false information include the testator was convinced to make a gift to someone they otherwise wouldn’t have or to cancel a gift they otherwise wouldn’t have because of lies they were told by someone who stood to benefit.
To prove this, you may need to find evidence of the false information that was given to testator, which might include testimony from witnesses who the testator discussed the matter with.
If you believe the Will was prepared and/or signed fraudulently, providing this might rely on expert handwriting evidence to show that the signature does not match that of the testator.
Can I challenge a Will for failing to provide for me?
If you were dependant on the deceased and you feel their Will has not made ‘reasonable provision’ for your needs, you may be able to make a claim against their estate under the Inheritance (Provision for Family and Dependants) Act 1975.
Commonly referred to as an ‘Inheritance Act claim’, this allows you to apply to a court to vary a Will, either where you are unhappy with the inheritance you have been bequeathed or where you have been left out of the Will entirely.
In some cases, it may also be possible to voluntarily agree a settlement with the other beneficiaries allowing you to receive an inheritance or a larger inheritance than that specified in the Will.
What is ‘reasonable provision’ in a Will?
This will depend on the circumstances, but generally, it means the type of financial assistance a dependant of the testator could reasonably have expected the deceased to have provided if they were still alive.
This might include covering basic living costs, such as for housing and food, as well as other costs, such as for education or transport.
Can you sue a solicitor for mistakes in a Will?
If the deceased’s Will was drafted by a solicitor or other professional Will writer and you believe they made mistakes in the way the Will was written, you may have grounds for a professional negligence claim against them.
To make a claim for professional negligence, you will need to show that the Will writer fell below professionally acceptable standards in the way they prepared the Will and that this has resulted in a financial loss to you.
If you are considering making a professional negligence claim against a Will writer, you should seek specialist legal advice as soon as possible.
You may also be able to apply to a court to ‘rectify’ a poorly drafted Will, allowing them to ensure the testator’s true intentions are honoured.
If you believe that you have grounds to contest a Will, please speak to one of our disputed Wills solicitors now by calling 0800 158 4147 or request a call back and a member of our team will be in touch promptly.
People who can contest a Will
Who can contest a Will?
To contest a Will, you will usually need to be someone who:
- Is named as a beneficiary in the Will
- Was named as a beneficiary in a previous version of the deceased’s Will
- Would otherwise stand to inherit e.g. the deceased’s spouse, child or other dependants
Can a sibling contest a Will?
Siblings of someone who has passed away may be able to challenge their Will, depending on the circumstances, including if:
- They were financially dependent on the deceased
- They were named in the Wil
- They were named in a previous Will
- They would stand to inherit under the rules of intestacy (i.e. the deceased had no spouse, civil partner, children or other living relatives who come before a sibling in order of priority under intestacy rules)
It is always worth consulting a specialist Wills solicitor if you are unsure whether you may be eligible to contest a Will.
Can you contest a Will that you are not named in?
If you were not named in a Will, you may be able to make a claim if you were:
- A dependant of the deceased
- Named in a previous Will
- Someone who would stand to inherit under intestacy rules
When to contest a Will
How long do you have to contest a Will?
There are different time limits for different types of Will disputes, so how long you have to bring a claim will depend on the reason for the challenge. In general, it is easier to challenge a Will before probate has been granted and any bequests have been made.
Inheritance Act claims must usually be made no later than 6 months after probate is granted (or letters of administration are granted if the person died without leaving a Will). A court can allow claims under the Inheritance Act outside of this 6-month time limit if there are exceptional circumstances. However, such instances are rare and should not be relied on.
If you wish to challenge a Will on the grounds of fraud, there is no time limit for doing so.
For professional negligence claims against Will writing professionals, you usually have 6 years from the date the negligence occurred (i.e. the date the Will was drafted) or 3 years from the date you became aware of the negligence, whichever is later.
If you wish to apply to a court to rectify a negligently drafted Will, you will normally have 6 months from the grant of probate to do so.
Can you contest a Will after probate has been granted?
Yes, it is very common for claims to be brought after probate has been granted. In many cases, it is only after probate has been granted and the Will becomes public that people may realise that they have been excluded or that they have not been left the level of inheritance they were expected.
As stated above, for Inheritance Act claims and applications to rectify a Will, you normally have 6 months from the grant of probate to contest a Will.
Can you contest a Will after the estate has been distributed?
Yes, but it is usually preferable to challenge a Will before the bequests have been made. This is because, even if your claim is successful, you may struggle to collect any funds or other assets owed to you if they have already been transferred to other parties.
If the estate has been distributed, you may need to take further legal action to recover the funds or other assets you are owed, which can make the process take longer and involve more legal costs and stress for you.
If you have been named as a beneficiary or otherwise stand to inherit, our disputed Wills solicitors are on hand to provide the support and guidance you need. Call us on 0800 158 4147 or request a call back and a member of our team will be in touch promptly.
The process for contesting a Will
How can you get a copy of a Will?
When someone dies, the only people who are legally entitled to see a copy of their Will before probate has been granted are the named executor/s.
Once probate has been granted, the Will becomes a public document held by the Probate Registry. Anyone can then request a copy of the Will.
If probate has not yet been granted, you can ask the executor/s to see a copy of the Will and most executors will allow this, but they are under no legal obligation to do so.
Can you stop probate?
Yes. If you wish to dispute the contents of a Will, the first step will usually be to file a caveat with a court to prevent Grant of Probate for the estate. This stops the assets of the estate from being distributed, giving you time to try to sort out the dispute.
A caveat lasts for 6 months initially and can be extended for a further 6 months for a small fee. You can extend a caveat as many times as you need to, meaning you can effectively delay the grant of probate indefinitely.
Do you need to go to court to challenge a Will?
Not necessarily. In many cases, it is possible to agree on a voluntary settlement with the executors and other beneficiaries of the Will through negotiation, mediation and other non-confrontational options. This can save you time and legal costs, as well as allowing you to avoid damaging important family relationships.
However, in some cases, it may be necessary to apply to a court to resolve a Will dispute. If court proceedings are required, you should seek specialist legal advice and representation as soon as possible to ensure your case is handled the right way.
How long does it take to contest a Will?
This is very hard to predict as it will entirely depend on the circumstances. In general, if you can agree on a voluntary settlement with the other parties involved, you will be able to resolve your Will dispute much faster. If court proceedings are required, it can potentially take years to achieve a resolution.
What happens if you get a Will overturned?
There are various possible outcomes if you manage to show that a Will is flawed or entirely invalid. These potential outcomes include:
- A court ‘rectifying’ the Will i.e. modifying it to reflect what the court accepts were the testator’s true intentions
- A court order that an earlier Will be used instead
- A court order specific bequests from the deceased’s estate e.g. to provide reasonable provision for a former dependant of the deceased
- A court order that the deceased’s estate be divided according to the rules of intestacy
Cost of contesting a Will
How much does it cost to contest a Will?
Will disputes can be very expensive, especially if court proceedings are required. Our team will always give you honest advice about the likely costs involved and how this compares to the benefit you are likely to receive from a successful claim.
Keeping your legal costs to a minimum is one of the main reasons we recommend seeking an out-of-court solution wherever possible. Agreeing on a voluntary settlement with the other parties to the dispute is generally much less expensive for everyone and minimises the risk of the legal costs outweighing the benefits if your claim succeeds.
Who pays to contest a Will?
During the course of your case, you will be responsible for your own costs. If you settle the dispute voluntarily with the other parties involved, you can decide between you how you want the costs to be paid. This might mean each party covering their own costs or the costs could be covered from the deceased’s estate.
If you take the matter to court, the court will decide at the conclusion who is responsible for each party’s costs. Depending on the outcome of your case, the judge may decide that each party is responsible for their own costs, they may order the losing party to pay the winning party’s costs or, in rare cases, the judge may order either or both parties’ cost to be covered out of the deceased’s estate.
Can I get legal aid to contest a Will?
Unfortunately, legal aid is no longer available for Will disputes and other contentious probate matters. We offer a number of funding options, so please get in touch with a member of our team to see how we can help you meet the cost of contesting a Will.
If you need expert advice before contesting a Will, please get in touch with our disputed Wills solicitors now by calling 0800 158 4147 or request a call back and a member of our team will contact you promptly.
Problems with executors and estate administrators
What can you do if an executor is acting improperly?
If you have concerns about the actions of an executor, it is usually a good idea to consult a solicitor and then discuss the matter with the executor in question in a non-confrontational way if possible. Being an executor can be a challenging role, which many people find overwhelming, so it is often the case that an executor who seems to be acting improperly simply needs some help and support.
Where you believe the executor is acting in bad faith (e.g. deliberately spending money from the estate in inappropriate ways or refusing to move forward with the probate process) you may need to take stronger action, such as initiating court proceedings. However, in most cases, it is still possible to resolve these issues through negotiation, mediation and other non-confrontational dispute resolution methods.
Can you have the executor of a Will removed?
Yes, there are a couple of different options depending on the circumstances. If you believe an executor is acting in good faith but is simply not up to the task, you could agree with them for someone else to take over the role or to provide them with support e.g. a solicitor or other legal professional.
However, if you believe an executor is deliberately acting against the wishes of the deceased and/or the interests of the beneficiaries, you may need to apply to a court to have them removed. You can apply to have an executor removed either before or after probate has been granted and you can either have them replaced with another named executor or a professional, such as a solicitor.
Why choose Tayntons to contest a Will?
Tayntons’ disputed Wills solicitors have extensive experience helping individuals and families to contest Wills under even the most complicated circumstances. Based in Gloucester, we work with clients throughout Gloucestershire, including Cheltenham and the Forest of Dean.
Tayntons has achieved Lexcel accreditation from the Law Society, recognising the strength of our practice management and client care. We are independently regulated by the Solicitors Regulation Authority (SRA) providing assurance that we continually meet the highest legal and professional standards.
Get in touch with our disputed Wills solicitors in Gloucester
Need help contesting a Will in Gloucester, Cheltenham, the Forest of Dean or anywhere in Gloucestershire? Please contact us today by calling 0800 158 4147, emailing us at info@tayntons.co.uk or requesting a call back.