Is it possible to contest a will?

by | Feb 25, 2022 | Wills

When a loved one dies, the last thing you want is to become embroiled in an often bitter dispute with family members over a will. 

But, if you strongly suspect their will wasn’t legally valid or it did not reflect their true wishes, you might have grounds to challenge it.  

For a will to be legally binding, the deceased must have made it in writing and signed and dated it in front of two witnesses, who also must sign it.

Assuming that broad criteria has been met, the assumption will be that it’s been properly executed. Contesting it would, therefore, be difficult.

Before you get to that stage, however, there’s an important thing to consider: go into it knowing it can take years to reach a resolution. 

Is it worth contesting a will? 

Whatever you do, you should consider whether disproving the will would actually be a better result than accepting the existing will. 

A successful challenge could land you a larger windfall, but think about the long-term implications – both for yourself and the other parties involved. 

One in five Brits fall out with a relative over the death of a family member, and most disputes involve the deceased’s finances and estate. 

Fighting over inheritance can get ugly and it’s fairly common for many of these conflicts to never be resolved, causing relationships to break down.

You also should know it costs money to contest a will. You will need to appoint a solicitor to represent you and the longer it drags on, the more it costs.

In some cases, it’s possible for the legal costs to exceed the value of the deceased’s estate – and this can make it very difficult to settle. 

It’s imperative to weigh up whether it’s actually worth the stress, time and costs of contesting a will before you decide to crack on.

When can a will be challenged?

If you are happy to go to war with members of your family, you must have grounds to contest the deceased’s will.

Was the deceased not of sound mind when they made their will? If so, you might be able to argue they did not have the required mental capacity. 

You must be able to raise a genuine suspicion that they were not of sound mind, such as the deceased having a neurological condition like dementia.

Should you achieve this, the onus will be put back onto those seeking to prove the will. They will need to prove the deceased did have mental capacity. 

The date at which the will was signed is also crucial to determine how it will be treated from a legal perspective. 

For wills made after 1 April 2007, having medical records or the opinion of the deceased’s doctor is absolutely vital to invalidate their will. 

You could also claim the deceased did not properly understand and approve the content of their will, but it will be up to you to prove that. 

This could be relevant to you if the deceased was partially deaf or blind, had low levels of literacy, or was frail and vulnerable. 

If you can prove there was an undue influence on the deceased when they made their will, you might have grounds to challenge the will. 

In this case, you will need to prove in court that there’s no other reasonable explanation for the testator’s action and that they were being influenced. 

A claim of this nature should be treated with extreme caution as you will likely face substantial costs if you fail to prove this in court. 

As far as forged wills go, if you can prove it, the will is invalid. It’s often wise to enlist the help of a hand-writing expert in such circumstances.

They will cast an eye over the deceased’s signature, although provide them with genuine examples of their signatures for comparison as well. 

If there’s a mistake with drafting the will, you may be able to claim for a clerical error. You have to do it within six months of probate being granted.

However, the claim may be for professional negligence as the will is still valid, rather than disproving the will. 

Finally, people can claim for a failure to make reasonable provision, which applies if someone close to the deceased (such as a spouse or child) are left with insufficient money to get by.

Who has the right to contest a will?

In theory, anyone can contest a will. Usually it’s a child, spouse, ex-spouse or cohabitant – someone who doesn’t stand to benefit from the will. 

Any of these parties can seek legal advice early on in the process to establish the facts and likely outcomes following the death of a loved one. 

Most challenges are lodged before a grant of probate has been issued, although each case is unique and often takes time to resolve. 

If a court sides with you and deems the will is invalid, the estate will be distributed at the court’s discretion. There’s no guarantee you’ll get anything. 

Usually, courts distribute estates according to the most recent legally-valid will. If you’re named in that version, you will probably benefit.

We are leading will writers in South Wales and we can help you plan the distribution of your estate, while potentially minimising its inheritance tax bill. 

Call or email to find out more.

DISCLAIMER

The information provided is of a general nature. It is not a substitute for specific advice in your own circumstances. You are recommended to obtain specific professional advice from an appropriate professional before you take any action or refrain from action. Whilst we endeavour to use reasonable efforts to furnish accurate, complete, reliable, error free and up-to-date information, we do not warrant that it is such. We and our associates disclaim all warranties. The information can only provide an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice.

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