A Guide to Contesting a Will

Last updated: 22/06/2023 | Estimated Reading Time: 8 minutes

Dealing with the loss of a loved one is never easy, and when disputes arise over the distribution of their estate, the grieving process can become even more challenging. In some cases, you may have reason to believe that the contents of their will are unfair or not reflective of their true wishes. This guide aims to explain how to contest a will in the UK, the grounds for doing so, and the process involved.

In This Guide:

Can You Contest a Will?

The ability to contest a will largely depends on the individual's relationship to the deceased and whether they have a direct interest in the estate. Typically, those who have the legal standing to contest a will include:

  • Beneficiaries named in the current or a previous will
  • Spouses or civil partners of the deceased
  • Individuals who were financially dependent on the deceased
  • Cohabiting partners who lived with the deceased for at least two years prior to their death
  • Children or other family members who believe they have been unfairly excluded from the will

If you fall into one of these categories, you may have the right to contest the will, but it is crucial to consult with a solicitor experienced in contentious probate to discuss your individual circumstances and determine if you have a valid case.

Reasons for Contesting a Will

There are several common reasons why a will might be contested, which can form the basis for a legal challenge. These include:

Lack of Valid Execution: For a will to be considered legally valid, it must be signed by the testator (the person making the will) in the presence of two witnesses, who must also sign the will. If any of these requirements are not met, the will may be deemed invalid due to a lack of valid execution. For example, if one of the witnesses was not present during the signing or if the testator's signature is missing, the will could be considered improperly executed and therefore invalid.

Lack of Testamentary Capacity: The testator must have had the mental capacity to understand the nature of their actions and the consequences of making a will at the time it was created. This includes understanding the extent of their property, the identity of their beneficiaries, and the way in which their assets will be distributed. If it can be proven that the testator lacked this capacity, perhaps due to dementia, mental illness, or other cognitive impairments, the will may be declared invalid.

Undue Influence: A will must be created voluntarily and without any coercion or manipulation. If it can be demonstrated that the testator was pressured, coerced, or manipulated into making the will by someone who stood to benefit from its contents, the will may be considered invalid due to undue influence. Proving undue influence can be challenging, as it often requires gathering evidence of threats, deceit, or improper persuasion used to sway the testator's decisions.

Fraud or Forgery: If the will is found to be fraudulent or has been forged, it will be deemed invalid. Fraud could involve someone intentionally deceiving the testator about the contents of the will, leading them to sign it under false pretences. Forgery refers to situations where the testator's signature or the entire will has been fabricated without their knowledge or consent. In either case, the estate will be distributed according to the rules of intestacy or the terms of a previous valid will.

Lack of Knowledge and Approval: For a will to be valid, the testator must have known and approved of its contents. If it can be proven that they were unaware of the contents, did not understand the implications of the provisions, or did not approve of them, the will may be invalidated. This might occur if the testator was deceived about the contents of the will or if the will was altered after it was initially signed without the testator's knowledge or consent.

How to Contest a Will

If you believe you have grounds to contest a will, it is important to follow a series of steps to ensure your concerns are addressed and the deceased's true wishes are upheld. This section provides a detailed outline of the process, using subheadings to separate each step, allowing for a more comprehensive understanding of how to contest a will.

1. Seek Legal Advice

The first step in contesting a will is to consult with a solicitor who specialises in contentious probate. These professionals can help you determine whether you have a valid case and guide you through the process. They will assess your eligibility to contest the will, evaluate the grounds for your claim, and provide advice on the best course of action. It is essential to choose a solicitor with experience in this area, as they will be better equipped to navigate the complexities involved in contesting a will.

2. Gather Evidence

Once you have consulted with a solicitor and determined that you have a valid case, the next step is to gather evidence to support your claim. This may involve collecting medical records to demonstrate a lack of testamentary capacity, obtaining witness statements to provide insight into potential undue influence, or gathering correspondence that may indicate fraud or a lack of knowledge and approval. Your solicitor will assist you in identifying the necessary evidence and obtaining it in a legally admissible manner.

3. Enter a Caveat

In some cases, it may be necessary to enter a caveat to prevent a grant of probate from being issued while you contest the will. A caveat is a formal notice that temporarily stops the administration of the estate, allowing you time to challenge the validity of the will without the assets being distributed. Caveats last for six months but can be extended if required. Your solicitor will advise you on whether entering a caveat is appropriate in your situation and, if so, guide you through the process.

4. Attempt Mediation

Before resorting to court proceedings, it is often advisable to explore alternative dispute resolution methods, such as mediation. Mediation involves the appointment of an impartial mediator who facilitates discussions between the parties involved in the dispute, helping them work towards a mutually agreeable resolution. Mediation can be a more cost-effective and less stressful way of resolving disputes over a will, and it may be a suitable option for your case. Your solicitor can help you arrange mediation and provide guidance throughout the process.

5. Issue Court Proceedings

If mediation is unsuccessful or deemed unsuitable, the next step is to issue court proceedings. Your solicitor will help you draft the necessary documents, including a claim form and particulars of claim, which outline the basis of your case. These documents will then be served on the other parties involved in the dispute, giving them an opportunity to respond and present their side of the argument.

6. Disclosure and Evidence

Following the commencement of court proceedings, both sides will be required to disclose relevant documents and evidence to each other. This process allows each party to review the evidence and prepare their case accordingly. Your solicitor will assist you in preparing your witness statements, as well as any expert reports that may be required to support your claim.

7. Negotiations and Settlement

Throughout the court process, negotiations between parties may continue in an attempt to reach a settlement. If a settlement can be agreed upon, this will typically be formalised in a legally binding document called a consent order. Settling the dispute outside of court can save time and money, and it may also result in a more satisfactory outcome for all parties involved.

8. Trial

If the case cannot be resolved through negotiations, it will proceed to trial. At the trial, a judge will hear the evidence from both sides and make a decision on the validity of the will and the distribution of the estate. It is important to note that the judge's decision can be appealed, but only in specific circumstances, such as if there was an error in law or if new evidence comes to light that could not have been reasonably obtained during the initial trial.

9. Post-Trial and Enforcement

Following the trial, if the judge rules in your favour, the will may be declared invalid, and the estate will be distributed according to the rules of intestacy or the terms of a previous valid will. If the decision involves financial provision for certain parties, your solicitor can help ensure that these provisions are enforced.

If the judge's decision does not align with your desired outcome, it is important to discuss your options with your solicitor. They can advise you on the possibility of an appeal or alternative courses of action.

Can You Contest Life Insurance as Well as a Will?

When contesting a will, it is important to understand the unique characteristics of life insurance policies and their implications on estate distribution. Life insurance proceeds are typically separate from the probate process, as they are paid directly to the named beneficiaries rather than being distributed through the will. This means that life insurance proceeds generally remain unaffected when contesting a will.

However, disputes can still arise over life insurance policies, particularly if there are concerns about the validity of the beneficiary designations. Issues such as undue influence, lack of mental capacity, or fraud in the designation of beneficiaries may lead to legal disputes that are separate from contesting the will itself.

Contesting a Will the Right Way

Contesting a will can be a complex and emotionally challenging process. It is essential to approach the matter with a thorough understanding of the legal grounds and procedures involved. By seeking the advice of an experienced solicitor, gathering the necessary evidence, attempting mediation, and potentially going to trial, you can increase your chances of achieving a successful outcome that upholds the deceased's true wishes.