There is often confusion around contesting a will. In the majority of cases when a person dies the administration of their estate will be dealt with in line with the wishes left in their will (or under the rules of intestacy if there is no will)
This may result in what appears to be an odd distribution of the estate, but if it is in accordance with the deceased’s wishes, a disappointed beneficiary may have difficulties in contesting a will.
If, however, a will does not include the true intentions of the person making the will, or if the will has not been executed correctly, it may be invalid and can therefore be contested.
Our team regularly acts in matters concerning high profile inheritance disputes and matters reported in the national press including the leading authority Ilott v Mitson UKSC 2015/0203 which was heard in the Supreme Court on 12 December 2016.
It is a well-established law that “...an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases...”
We have a specialist team of contentious probate solicitors who are recognised as experts in their field. The team is led by Martin Oliver who has many years’ experience of successfully resolving will disputes for clients. Many of Martin's cases are reported in the national press.
Our objective is to deal with what can be extremely upsetting and emotional matter in a sensitive and straightforward way. Members of our specialist team are recognised in the top legal directories for their contentious probate experience including Chambers UK and Legal 500.
Martin Oliver continues to enjoy a healthy reputation in the contentious private client sphere. He has a particular interest in matters concerning the Inheritance Act 1975.
What happens when a will is contested?
The process of contesting a will is legally complex. If you have concerns about the actions of executors, our nationally recognised specialist lawyers will identify the most appropriate response including, where necessary, mediation and court proceedings.
The starting position is that where a will has been properly signed and witnessed it is a valid document. It is possible to contest a will’s validity and the usual grounds for doing so are as follows:
- The deceased did not have the requisite capacity to make the will;
- The deceased was not fully aware of or did not understand the content of the will;
- The deceased was unduly influenced in to making a will against his/her volition;
- he will is a forgery/fraud;
- The will has not been properly executed.
In addition to the above grounds, the Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of individuals to seek reasonable financial provision from the estate of the deceased.
Where a will is contested it is usual for the executor(s) to maintain a neutral approach in order to avoid personal liability in respect of legal costs if the executor(s) are found to have taken the incorrect approach to the dispute. In reality this means that where a will is contested the estate administration may be significantly delayed until the parties are either able to achieve an amicable resolution or until matters are resolved by way of an Order of the Court.
Grounds for contesting a will
There are several grounds for contesting a will including,
- lack of testamentary capacity
- undue influence or coercion
- lack of knowledge and approval
- Wills Act 1837
- and forgery and fraud.
Lack of testamentary capacity
A person making a will must be of “sound mind, memory and understanding” when making a will. The law relating to whether a person has sufficient mental capacity to understand the content of his will and must:
- Understand the nature of his/her act and its effects;
- Understand the extent of the property which he/she is disposing;
- Be able to comprehend and appreciate the claims to which he/she ought to give effect;
- And must not be effected by any “disorder of the mind”.
Our guide to contest a will based upon lack of testamentary capacity gives more details of this kind of will dispute.
Undue influence or coercion
One of the grounds for contesting a will is that the person who made the will was subjected to undue influence, i.e. this could be due to pressure exerted by a third party. The law defines pressure as being coercion, which may take several different formats. It can cover “physical violence, verbal bullying, or simply talking to a sick person who is seriously ill in such a way that the person may be induced for quietness sake to do anything”. The key question to be determined when contesting a will is whether the conduct is such that it overpowers the will of the testator.
For further details please see our article on contest a will based upon undue influence.
Lack of knowledge and approval
Where a will has been executed in suspicious circumstances, but there is insufficient evidence to prove undue influence, to be valid, the Court must be satisfied that the testator understood and approved the contents of his will.
Where a will has been executed correctly and the testator had the necessary testamentary capacity, knowledge and approval will be presumed. However, there are certain circumstances, which are detailed below, whereby it must be proved that the testator had the necessary knowledge to understand the content of their will and that they approved the content, namely:
- If the testator is deaf and/or dumb;
- Cannot speak or write or is paralysed;
- Blind or illiterate; or
- The will is alleged to have been signed by another person for the deceased at his discretion.
For further information on contesting a will: knowledge and approval please see our free guide.
Wills Act 1837
To be valid a will must comply with section 9 of the Wills Act 1837, namely:
- It must be in writing and signed by the Testator;
- The Testator must have intended by his signature for the will to be valid;
- The signature must be acknowledged by the Testator in the presence of two or more witnesses present at the same time; and
- Each witness either:
- attests and signs the will; or
- acknowledges his signature, in the presence of the testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary.
Please read our article for further details if you think you have grounds to contest a will based on section 9 of the Wills Act 1837.
Forgery and fraud
If it can be proved that a will has been forged or the person allegedly making the will signature has been forged, this will result in the will being invalid. Fraud is defined in criminal law as being “an intentional deception made for personal gain or to damage another individual”. Either ground, if proved will result in the will being invalid.
If you wish to contest a will based upon forgery and/or fraud, please read our articles:
Costs of contesting a will
Contentious probate specialist Martin Oliver receives the highest of praise from market commentators: "He has a very good legal brain, an eye for detail and a tactical sixth sense. He has an appropriate mix of empathy and clear, unambiguous and realistic advice.
Like all litigation unfortunately inheritance disputes can be costly. In fact they can be more expensive than other forms of litigation due to the amount of investigation and work required. Unfortunately there is no average cost of contesting a will, each case is unique based on the amount of work required.
As with general litigation the usual principle is that costs are at the full discretion of the Court, however, the losing party will generally be ordered to pay the winning party’s costs in addition to their own.
It is incorrect to assume that the costs in inheritance claims are automatically met by the estate. Although there are special circumstances where a Court may make an alternative Order:
- If the person who made the will or those persons interested in the residue of the estate are found to have caused the litigation then costs may be met by the estate; and
- Where the Court finds that it was reasonable for there to be an investigation in regards to the will, it may Order that the parties’ costs should be borne by those who respectively incurred them.
It is important to consider potential costs implications at the outset of any proceedings, which is why before deciding to contest a will it is crucial to conduct an information gathering exercise and to review the merits of the case in the early stages.
Contesting a will after probate
If you believe that you may have grounds for contesting a will it is important to seek advice as quickly as possible. This is because it is preferable to place the executor(s) on notice of a potential claim prior to estate assets being distributed. If there are genuine grounds for suspicion that a will may be invalid then it is possible to enter a caveat against the estate in order to prevent a Grant of Probate from being extracted whilst the dispute is ongoing.
It is still possible to contest an estate after a Grant of Probate has been obtained, however, this can prove problematic if estate assets have already been distributed to third parties.
How long do I have to contest a will?
There are certain time limits to contest a will; these are dependent on the individual circumstances of each case and the grounds you wish to contest. In any inheritance dispute the quicker you seek legal advice the better.
As a general guide, if you are submitting a claim under the Inheritance Act, the time limit is 6 months from the date of probate being granted. There is no time limit for contesting a will on the grounds of fraud. The court can overrule these but only in exceptional circumstances.
Time limits to challenge a will depend on the specific circumstances of each case. However, in any dispute over a will, the sooner you act the better.
Who pays to contest a will?
All of our funding options apply to claims contesting wills, including no-win, no-fee type arrangements where you only pay our costs if we win (and your opponent should then already have paid the lion’s share). We can offer conditional fees and discounted fees to offer flexibility on funding your claim. Hand in hand with advice on funding comes advice on minimising the risks by after the event insurance; we have significant experience in obtaining appropriate cover. Please see our "Guide to funding litigation claims" for more information.
Who can challenge a will
Will disputes can be both legally complex and emotionally draining therefore it is advisable to obtain good legal advice from the outset. We can provide expert advice in relation to all of the different types of grounds on which you can contest or dispute a will. Examples of the type of cases our experts regularly advise upon are detailed below:
- whether the person making a will had the necessary testamentary capacity;
- concerns that there has been undue influence, coercion;
- has the will or a signature been forged;
- has the will been executed correctly;
- did the person making the will lack the necessary knowledge and approval.
Will disputes involving estates also arise in relation to the following:
- the interpretation of the terms of a will or trust;
- disputes between beneficiaries and executors/trustees;
- applications to remove or substitute executors or trustees;
- errors in the drafting of a will;
- incorrect administration and distribution of estate.
Our expert team of contentious probate solicitors can advise you on all aspects of contesting a will please contact us for further information.
In some circumstances, it is appropriate to enter what is known as a caveat. This prevents a Grant of Representation being issued from the Probate Registry.
It is advisable to seek legal advice before entering a caveat to ensure that you are not exposed to adverse costs if it has been incorrectly or unreasonably entered. Applications to enter caveats are made to the Probate Registry and are valid for a specified period of time after which further action will be needed to maintain the caveat, if appropriate.
If an Executor wishes to make an application for a Grant of Representation where a caveat in in place, a warning will be served on the caveator by the executor, about which advice should be sought.
In 1959 the Law Society recommended that in circumstances where there are concerns about the instructions by a testator or in relation to their Will and the execution of it, the solicitor that drafted the Will should provide a statement of his or her evidence dealing with those issues.
This recommendation was endorsed by the Court of Appeal on 21 February 1979 in the case of Larke v Nugus. This practice was also recommended in the Law Society’s Guide to the Professional Conduct of Solicitors.
It is therefore possible to make enquiries of the solicitor involved to obtain information to allow the merits of a case to be considered. A Larke v Nugus letter should be tailored to the circumstances in hand and this will often be the first line of enquiry made by a solicitor.
Challenging a will on the grounds of lack of testamentary capacity; If you are not an executor, the best procedure is to contact the executors to make a joint approach to the relevant care providing authority. The Access to Health Records Act 1990 allows for any person who may have a claim arising out of the deceased’s death to make a request, in writing, for medical records.
However, access will not be given for any part of a record made before 1 November 1990, unless it necessary to allow the records which are disclosed, to be understood.
Ordinarily, the original will will be needed so that it can be examined by an expert.
In some circumstances if a copy of the will together with original samples signatures from around the time the will was purported to be executed are available, it may be possible to instruct an expert to provide an opinion as to the authenticity of the signature which appears on the purported will.
If a matter proceeds on the basis that a signature to a will is not authentic, an indicative report can be obtained initially but a Civil Procedure Rule compliant report will be needed if the matter proceeds to a final hearing. The cost of obtaining an expert report can vary and this expense should be taken into consideration if this option is pursued.
In some cases, the value of the estate can determine whether a claim should be pursued. The legal fees which might be incurred in taking a contentious probate matter through to a final hearing can be significant and that should be taken into consideration.
A cost/benefit analysis also needs to be carried out to ascertain what might be gained from pursuing a claim. The value of an estate is included on the Grant of Representation (see above) and in some circumstances, this information will help to resolve queries over the value of an Estate where it is unknown.
If the value which is declared does not accord with your understanding, this may give reason to make further enquiries with the executors.
An executor should remain neutral where a dispute arises in relation to an estate. The executor must assist with the provision of information about the estate and if an executor is approached to make a request for medical records so that a claim can be assessed, the executor would be expected by court, to deal with that request.
Set fees are payable for copies of medical records and this expense should be taken into consideration when assessing whether you are able to fund any potential claim.
In most cases, the payment of costs will follow the event that is to say that the losing party will pay the winning party’s costs.
In some circumstances, for example where it can be proved investigation was needed so as to establish the true position as a result of the Deceased’s conduct, costs can be paid from the Deceased’s Estate however, this is at the discretion of the Court.
Claims should not be launched on the basis that costs will automatically be paid from the Deceased’s Estate and consideration should be given to how you will pay your own costs and potentially, the costs of your opponent.
After the Event Insurance is available for some types of contentious probate claims and you may wish to seek advice in this regard.
Any settlement must be recorded in writing whether this be a Settlement Agreement or through ‘open’ correspondence. In some circumstances, it is appropriate for a Deed of Variation to be entered into so as to redirect the Estate assets.
This is ordinarily something that your solicitor will deal with for you and the Executors will then be bound to distribute the Estate in accordance with the agreement reached.
It is important for the tax implications of any settlement to be taken into consideration and specialist advice should be sought in this regard. In some circumstances the settlement reached could also have tax implications for both the Estate and beneficiaries.
Consideration should be given as to who should be responsible for any additional tax arising out of the settlement agreed.
It is helpful to ascertain whether a Grant of Representation has been taken out in respect of the Estate and by whom. A Grant of Representation is a document that is issued by the Probate Registry. It proves the Executors are entitled to handle the estate of the Deceased.
Once a Grant of Representation has been issued, ordinarily the Deceased’s Will becomes a public document. In order to have all of the relevant information available from the outset, it is possible to carry out what is known as a Standing Search to find out if there is a Grant of Representation and if there is, obtain a copy of it together with the Will.
A Standing Search takes account of historic records for a specified period of time and remains effective going forward for a set period of time after it has been lodged, if no Grant had been issued at the time of lodging.
As soon as you are aware of a potential claim, it is advisable to contact a solicitor. In relation to claims made pursuant to the Inheritance (Provision for Family and Dependents) Act 1975, they should be made within 6 months from the date of the Grant of Probate.
Different types of claim are subject to different time periods in which proceedings must be issued and you should seek advice if you are unsure as to any time restrictions which might affect a claim you wish to bring. If you feel you have ground for contesting a will we advise you to seek a solicitor as soon as possible.