Contesting a Will

What are the grounds to contest a will?

Although it can seem unfair, and you may feel hurt at being left out of a will, it is not possible to contest a will just because you think you should be entitled to some of the deceased's estate. 

There are generally three ways in which a will can be contested. The first is when the will itself is thought to be invalid. The second applies if the will fails to make a 'reasonable financial provision' for someone who was maintained by the person immediately before they died. Finally, the third route relates to the doctrine of proprietary estoppel, whereby promises made by the testator can override the terms of the will provided certain criteria are met.

The validity of a will can be challenged on several grounds, those grounds being:

• Lack of testamentary capacity: When a person creates an apparent rational will, it's assumed they have the mental capacity to do so. However, the will will not be valid if they did not have the capacity at the time of making it.

• Undue influence: Undue influence is when excessive pressure or coercion persuades someone to change their will. There is a fine line between offering advice and using coercion to obtain a benefit. If coercion is used, the will is invalid.

• Lack of knowledge and approval: For a person's will to be valid, they must have understood and approved its contents and consequences rather than just having the literacy or ability to read. It is invalid if a person didn't agree or understand the terms of the will.

• Lack of valid execution: A will can be contested on the grounds of lack of valid execution if there is reason to believe the most basic legal requirements, such as being in writing, signed and witnessed, were not met when the will was created.

•  Forgery or fraud: If a will has been forged or is subject to fraud, it will be deemed invalid. Expert evidence is usually needed to prove these cases.

Other legal challenges (beyond validity)

There are other challenges that can be made to a will that do not alter the validity of the will itself, such as:

• Reasonable financial provision
• Proprietary estoppel
• Rectification

Lack of testamentary capacity

The legal term "testamentary capacity" describes a person's mental ability to make or amend a valid will. The person making a will is called a testator. The will is invalid if the testator lacks testamentary capacity when making or amending the will. 

In order for someone to pass the mental ability requirements, they must be able to

• understand the nature of the will they are making and its effect
• understand the extent of the property of which they are disposing
• be able to comprehend and appreciate the claims to which they ought to have regard
• not be suffering from any insane delusion

This basis of challenge is often relevant in relation to elderly testators suffering from cognitive impairment. Whilst a diagnosis of dementia, for example, does not of itself mean the testator lacked the required testamentary capacity (the four criteria above being the applicable legal test) if the effect of that dementia is such that the testator did not, for example, understand how many children they had, or whether all of those children were still living that might be a good evidential indicator of inadequate testamentary capacity.

This is one of the most frequent grounds for challenging wills, and if support can be found within the testator’s medical records, together with statements from those close to the testator at the time the will was created and inadequate checks from those who prepared the will (if the will was professionally drafted), then that may start to form the evidential basis of a will challenge.

Undue influence

Undue influence is when a person has used influence, power, force, or coercion to make or alter a will that directly benefits them. 

If undue influence is the ground for contesting a will, showing that a person was coerced rather than persuaded is essential. However, the courts have recognised coercion in many forms. 

If, for example, a vulnerable adult who is mainly housebound and therefore reliant upon one of her two sons to help with daily tasks were to change her will so that, rather than sharing her estate equally, she leaves her entire estate to the son who takes care of her, that could be a valid will assuming she did so without undue influence from her son.

However, if her son asked her repeatedly to change her will and then threatened to withdraw support unless she did, such conduct, if proven, could amount to undue influence.

Lack of knowledge or approval

For a will to be valid, the person making it must understand its content and the impact of their wishes before they can approve it. 

If a solicitor drafts a will, it is usually read aloud to ensure it is understood before signing, but this is only sometimes the case. If a will is drafted in suspicious circumstances, it may be that the contents do not match the wishes of the deceased or that they did not understand the effect of the will.

If instructions to a will were given by a person who then does not check through the terms and provisions of the will, that can lead to a challenge for want of knowledge and approval, as the testator must have knowledge of what is ultimately within their will and then, with that knowledge, approve of it. 

Improper execution of a will

For a will to be valid, it should be executed in compliance with the Wills Act 1837. This means specific rules need to be followed in its execution.

In summary, a will has to be in writing, signed by the person making the will or by someone in their presence under their direction, and the signature should be acknowledged in the presence of two or more witnesses at the same time. 

The will does not have to be on paper; although the majority are, it's still valid, even if it's on cloth!

However, if the will is not correctly executed, there may be grounds for contesting. 

Forgery or fraud

If the signature of the person who made the will or the entire contents or part of the will are forged, then the will is invalid. Fraud may also result from someone's lies. For example, if the person making the will is told a lie about a beneficiary and, as a result of the lie, removes them from the will, that would be fraud. This form of poisoning the mind of the testator is known as Fraudulent Calumny.

One obvious example of forgery would be creating a will without the testator's position, signing it on their behalf without their consent and then seeking to rely on that will after their death. Another example might be a will that the testator had drafted or given instructions to be drafted before their death but never signed. If anyone other than the testator were to sign that will after the testator's death, it would be vulnerable to challenge based on forgery or fraud.

Claiming reasonable financial provision

Depending on your relationship with the deceased, you may be able to claim reasonable financial provision if you were financially dependent on or maintained by them immediately before their death.

If, for example, you were in a relationship with the deceased, lived together and were reliant upon them for financial support (e.g. a place to live, payment of bills or other financial support) but were not married to them and they then died without a will, or with a will which made little or no financial provision for you, there may be grounds to bring a claim for reasonable financial provision from the estate.

Proprietary estoppel claims 

Whilst promises are not generally enforceable in law, if certain criteria are met, a party can apply to the court to enforce the terms of a promise made by another about property. This remedy is known as proprietary estoppel.

To bring a claim under the doctrine of proprietary estoppel, you must be able to evidence the following criteria:

• that a promise of property (or part of a property) was made to you by the deceased;
• that you have relied upon that promise;  
• that you have suffered detriment in reliance upon the promise and
• therefore, it would be wrong for the promise not to be honoured.

These situations have commonly arisen in the context of farming, for example, where a child is promised the farm in return for working on the farm with little or no pay, and the owner of the farm then reneges on that promise in life or fails to provide them with the farm in their will.

Rectification of a will 

If a will has been incorrectly prepared due to a clerical error, it is possible to apply to the court seeking rectification of the will to the form in which it was intended. 

Rectification would not apply to circumstances whereby the will writer misunderstood the effect of the will or the terms of the testator's instruction; rather, it applies only to clerical errors. In those circumstances, the court can change the will's wording to correct the mistake.  

How to contest a will

If you suspect a will may be invalid, gathering as much evidence as possible to support your claims is essential. Typically, the following steps are helpful when considering a challenge to a will:

Request a copy of the will and will file

If a lawyer helped prepare the will, getting a copy of the will file from them is crucial. The will file usually includes notes that explain why the will was drafted a certain way, whether a capacity assessment was done, who provided the instructions for the will (such as if someone else introduced the person making the will to the lawyer), and whether the will was signed correctly. The will file is a valuable source of evidence that can be helpful in case of any challenges to the will.

Request the testator’s medical records

If you suspect that the person who made the will may have had issues with their mental capacity, it's essential to ask for a copy of their medical records. The medical records can show if there were any mental health problems like dementia at the time when the will was made and signed.

Collect witness testimony 

In cases where there are concerns about whether the person who made the will truly understood and approved of its contents or if there are suspicions of undue influence or fraud, there may not be much-written evidence to rely on. In such situations, gathering testimonies from witnesses close to the person who made the will can be helpful. These witnesses may be able to provide information about the person's vulnerability or whether a third party had a controlling or dominant influence over them.

What are the costs to contest a will?

The cost of contesting a will can vary depending on multiple factors, such as the case's complexity, the legal fees charged by your solicitor or law firm, and the point at which the inheritance dispute is resolved within the legal process.

For instance, if the dispute is resolved through an initial letter agreeing that the will is invalid, the costs generally range from £750 to £2,000. However, if further negotiation is needed, such as through mediation, the costs may be around £10,000. If the dispute ends in court, the costs can be significantly higher. However, it's important to note that over 95% of inheritance disputes are settled without involving the court.

It is crucial to discuss and clarify the potential costs with your solicitor upfront. Based on the specifics of your case, we can provide you with an estimate of the expected costs. 

We understand the importance of transparency and will work with you to provide a clear understanding of the potential costs involved in contesting a will. We strive to find efficient and cost-effective solutions for our clients while navigating the legal process with professionalism and expertise.

Types of costs when contesting a will

In general, there are three main types of costs associated with contesting a will:

• Legal fees: These are the fees the solicitor charges for their services, including drafting legal documents, representing you in court, and providing advice and guidance throughout the process.
• Court fees: If the case goes to court, fees may be associated with filing documents, attending hearings, and other court-related expenses.
• Other costs: Additional expenses may include obtaining expert opinions, gathering evidence, and hiring other professionals, such as barristers or forensic accountants, if needed for your case.

Who pays to contest a will?

When contesting a will, the legal costs are typically borne by the person contesting the will, also known as the claimant or the challenger. These costs usually include solicitor's fees, court fees, and any other associated expenses.

In some cases, if the challenge goes to court and is successful, the costs may be recovered from the deceased's estate, meaning that the estate would be responsible for paying the legal expenses. Costs can sometimes be claimed from the unsuccessful party if the court deems appropriate. However, it's important to note that this is not guaranteed, and the court has discretion in awarding costs.

What are the time limits to contest a will?

You have the right to challenge a will without any time limitations, but the sooner you take action, the better.

Estates are usually administered within 12 to 18 months after the person's death, and it's essential to make your case known before the assets have been distributed to ensure your claim is considered.

However, claims for reasonable financial provision must be brought within six months of any Grant of Probate or Letters of Administration date.

How long does contesting a will take?

The time it takes to contest a will varies depending on the nature of the claim and how the dispute is resolved.

• Straightforward cases may be resolved within 6 to 9 months, especially if settled out of court
• Complex disputes involving multiple parties, contested facts, or litigation can take 12 to 24 months, or even longer
• Cases that go to a full court hearing typically take the most time

Key factors that affect the timeline include:

• The type of legal claim being made (e.g. validity, Inheritance Act, proprietary estoppel)
• The amount and quality of evidence required
• Whether the dispute can be resolved through negotiation or mediation, rather than litigation.

Can you contest after probate?

If a person dies without a will or the will is deemed invalid, the estate will be distributed in accordance with the rules of intestacy.

The rules of intestacy dictate a hierarchy of relatives who benefit from the estate. This may not be in accordance with the deceased's wishes. Please see our article on contesting a will after probate for more details. 

Is it worth contesting a will?

Contesting a will can lead to a fairer outcome, but it’s not always the right decision for every situation.

Before moving forward, it’s important to carefully weigh:

• The potential financial benefit
• The legal costs and time involved
• The emotional and personal impact
• The likelihood of success, based on available evidence

Every case is different. Our experienced contentious probate solicitors will work with you to assess your position and help you decide whether contesting the will is likely to be worth it, legally, financially, and personally.

Success rates of contesting a will in the UK

Based on the cases we take on for our clients, over 70% of people who pursue an inheritance dispute receive a financial benefit. 

The success rate can depend on the merits of the grounds of dispute, the strength of evidence, and the legal strategies employed. Not all challenges to a will are successful, as the legal system places a high standard of proof on those seeking to contest a will.

In some cases, a successful outcome may involve settling through mediation or negotiation, while in other cases, it may require litigation and court proceedings. Success rates can also vary depending on the specific court jurisdiction and the judge's interpretation of the law.