Contesting a Will

Contesting a Will

There are a range of reasons why you may consider contesting a Will or challenging an estate. On this page I discuss some of the most common reasons and explain some of the factors that influence whether a claim is possible.

It is important to appreciate that taking advice early on maximises your likelihood of a successful claim. Steps can be taken to prevent the Deceased’s estate from being distributed whilst your claim is dealt with. That is not to say your claim will definitely fail if the estate has been distributed – some types of claim can still be made – but others have strict time limits. Further, it is more difficult to recover monies from the beneficiaries once assets have been distributed.

It is also important to appreciate that many Will challenges do not go to court. Court action is expensive, time consuming, stressful and risky. An experienced solicitor will always try to reach a settlement on your behalf without the need for litigation – for example, using mediation.

Lack of reasonable financial provision

One of the most common reasons for contesting a Will is that the Deceased did not make reasonable financial provision for one or more of their children, or their spouse, civil partner, or cohabitee. The law regarding this type of claim is contained in the Inheritance (Provision for Family and Dependants) Act 1975. It sets out a finite list of people who are entitled to bring a claim (although there is no guarantee that they will be successful).

If a spouse or civil partner is successful in bringing a claim, the amount awarded is usually akin to what they would have achieved in a divorce settlement. If anyone else is successful in bringing a claim, the amount is capped at what might be reasonable for their ‘maintenance’.

Find out more about making a claim for lack of reasonable financial provision here.

Unusual lifetime gifts

Sometimes the fact that a Deceased person’s estate was substantially reduced due to lifetime gifts is not discovered until they dies. At this point, it is not uncommon for relatives to question whether a lifetime gift was made as a result of undue influence.

To make a lifetime gift, the person making the gift must have the same level of mental capacity as if they were making a Will. They must understand the extent of the property gifted and the effect of giving it away. They must also consider any others that might expect to inherit (although this doesn’t mean the person has to actually provide for them) (Re Beaney (Deceased) [1978] 1 WLR 770).

If the gift is made to a person in whom the gift-giver placed “trust and confidence” and the transaction “requires an explanation”, there is a presumption that the person making the gift was unduly influenced. The recipient of the gift must then prove this was not the case. In essence then, if substantial, unusual gifts have been made, it may be possible to challenge them.

Lifetime promises

It may be that the Deceased promised something to someone and that person relied on that promise to their detriment. An example would be, parents promising their children that if they work on the family farm for little or no payment, they will ‘inherit someday’. If the parents did not then fulfil their promise by gifting the farm in their Wills, the child may have a claim. This is called ‘estoppel’. The doctrine of estoppel would likely, in this scenario, prevent the parents from gifting the farm elsewhere because the child has worked on the farm with little or no payment and has therefore suffered a detriment on the basis of their parents’ promises.

Money owed

If the Deceased owed money to someone, that person may want to claim against the estate. Usually this will just be sorted out with the Deceased’s Personal Representatives, although legal assistance may be needed if they do not agree that the money was owed.

Authenticity of the Will

There are a number of reasons why a Will might be found to be invalid, thus leading to a claim regarding its authenticity. Some of these are set out below – click on a link to find out more.

1. The Will has not been executed properly

2. The person making the Will did not have ‘testamentary capacity’

3. The person making the Will was subject to undue influence

4. The person making the Will had a lack of knowledge and approval of its contents

5. The Will is a forgery, or some fraud was involved in its making

6. The forfeiture rules apply

This list is not exhaustive. A specialist lawyer can advise on whether you have grounds to make one of the above types of claim.

Other types of action

There are various other types of action that might be taken when a probate dispute arises.

When someone dies, it is often necessary to apply for an order allowing for their estate to be dealt with. The majority of these applications are processed in accordance with the Non-Contentious Probate Rules 1987. Provided that there is no challenge to the estate, a grant of probate or letters of administration will be issued and the Deceased’s personal representatives can get on with their duties.

However, sometimes interested parties may wish to challenge the grant of probate. This may mean entering a ‘caveat’ which stops the grant being issued, whilst one of the possible issues above is investigated. Alternatively, it may mean:

Interest action

An interest action involves a dispute as to the interest of someone who claims to be entitled to a grant of probate (or letters of administration). Such actions may purely relate to a person who believes they are entitled to administer the estate – or they may be part of more complex claims which relate to the validity of the Will. Alternatively it may involve considerations as to the applicant’s legitimacy – for example, the question of whether a person is really a child of the Deceased is relevant both to their entitlement to administer the estate and whether they are entitled to inherit under the Deceased’s Will.

Revocation of grant

If the Will has already been proved but someone wants to claim it is invalid (and therefore that a grant of probate or letters of administration should not have been issued), the claim will be for revocation of the grant. This might be for example if a more recent Will comes to light, or if the person given the grant was not entitled to it.

Click here to find out about funding your claim.

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