Contesting a will after probate

31st October 2023

Contesting a will after probate

If you think you have valid grounds to contest a will, but you are concerned that the grant of probate has already been obtained, then you must act quickly. The first step is to notify the executors of the will of your potential claim to seek their agreement to refrain from distributing any assets pending the resolution of your claim.

It is possible to contest a will after probate has been granted, but doing so can be more problematic if any of the assets have already been distributed.

It is essential to take swift action and seek legal advice if you believe you have a valid case for contesting a will. By proactively engaging with the executors of the will and considering your legal options at the earliest opportunity, you can help protect your interests and increase the likelihood of a favourable outcome in a will dispute. 

The fundamental principles upon which you can challenge the validity of a will are the same regardless of whether the grant of probate has been obtained by the executors or not. To challenge a will, you must first have the requisite “legal standing” to challenge a will, i.e you must have a direct interest in the outcome, whether you are a beneficiary of a previous will, or if there is no earlier will, you must be a beneficiary under the laws of intestacy. This is because the terms of any previous will or (if there is no prior will) the laws of intestacy apply if you successfully invalidate the will in question. 

There are five main ways in which to challenge the validity of a will:

  • Lack of formality – the will must be made in satisfaction with Section 9 of the Wills Act. If it hasn’t been signed and witnessed properly, then it will be invalid.
  • Lack of capacity – The person making the will must have the requisite mental capacity to execute the will. If, for example, they had dementia when the will was executed, then the will could be invalidated.
  • Knowledge and approval – If the person making the will didn't fully understand and approve the terms of the will, then the will may be invalidated. 
  • Undue influence – The person making the will must have made the will of their own free will, and if a third party has forced them to create a will contrary to their own wishes, then the will may be invalidated.
  • Fraudulent calumny – a will can be invalidated if a third party has told lies about the character of another and the person making the will excludes that party in reliance upon those lies. 

How do I contest a will after probate has been granted?

The way that you may seek to invalidate a will depends upon the ground of challenge. Typically, the process will involve an initial evidence gathering exercise, which would usually involve:

  • Obtaining a copy of the will file.
  • Obtaining copies of medical records.
  • Collecting witness accounts from those who knew the deceased and/or who witnessed the will.

It is important to use all the investigative tools available to gather the relevant evidence to support your claim. Once you have gathered the necessary evidence in support of your will challenge, you would need to issue a claim at court seeking an order for the revocation of the erroneous grant of probate on the basis that the will in question was invalid.

Revocation of the Grant of Probate

By reason of the grant already being issued in the estate, it would be necessary to issue an application at court seeking the revocation of the existing grant of probate on the basis that the will was invalid. If approved by the Court, the application would see to the invalidation (or revocation) of the grant of probate and would allow the correct personal representatives to obtain the appropriate form of probate.  

When do I need to bring my challenge?

Although there is no limitation on your ability to challenge a will via these types of claims, the outcome is more likely to be favourable the sooner you act. This is particularly important if a Grant of Probate has been issued as, typically, simple estates are administered and distributed within 12 to 18 months of the date of death, so it is highly recommended to obtain legal advice at the earliest opportunity.

How long will it take?

The costs and duration of a will dispute will vary (depending upon the conduct of the people involved and the extent of court involvement required) but it can typically take 12 to 18 months to obtain a final order on a case.

Remember, every case is unique, and seeking professional legal guidance is recommended to understand the specific legal requirements and potential implications of contesting a will after probate has been granted.


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