Dispute Resolution and Litigation

Inheritance, Wills and Trusts Disputes

The death of a loved one is a time fraught with emotion. You don't want the additional stress of dealing with contesting a will. However, family inheritance, will and trust disputes are unfortunately increasing.

Our specialist contentious probate lawyers can help alleviate some pressure and achieve the best possible outcome for your family's wealth and relationships. We take a sensitive but pragmatic approach to resolving issues with inheritance.

Our team are experienced at working across a broad spectrum of estate and inheritance disputes, including trust disputes, will disputes, inheritance act claims, proprietary estoppel, court of protection problems, funeral and burial disputes and asset claims.

If you feel you have grounds to contest a will, we advise you to seek specialist legal advice as early as possible.

What are the grounds for contesting 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 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 
• Undue influence
• Lack of knowledge and approval
• Lack of valid execution
• Forgery and/or fraud

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. 

Undue influence

Undue influence is used to describe when a person has used influence, power, force or coercion to have a will made or altered, directly benefiting them. 

To use undue influence as a reason to contest a will, it is essential to show that a person was coerced rather than persuaded although coercion has been recognised by the courts in many forms. 

Lack of knowledge and approval

The person making a will must understand the content of the will and the impact of their wishes so that they can approve it for the will to be valid. 

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 of the will do not match the wishes of the deceased or that they did not understand the effect of the will. 

Lack of valid execution

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 be a result of 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 a fraud. 

Reasonable financial provision

If you were financially dependent or maintained by the deceased immediately before their death, it might be reasonable for this to continue after their death although this differs greatly depending on your relationship with the deceased. 

Proprietary estoppel

Whilst promises are not generally enforceable in law, it is possible to apply to the court to enforce the terms of a promise made by another in relation to property if certain criteria are met. 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
• that it would therefore 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 them 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 the terms of their will.

Rectification 

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, but rather it applies only to when a clerical error has occurred. In those circumstances, the Court has the authority to change the wording of the Will to correct the error.  

The rules of intestacy

If there is no will when a person dies, or the will is deemed invalid, then the person's estate will be distributed in line with the rules of intestacy. The rules of intestacy dictate a hierarchy of relatives who benefit from the estate. This may not be following the deceased wishes. 

"Craig Ridge has decades of experience in contentious matters such as wills and trusts disputes and 1975 Inheritance Act claims. One source states: "Craig is an excellent, very experienced lawyer. He approaches every matter in a very calm and pragmatic manner." Chambers and Partners

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 

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.

Medical records request 

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.

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.

How long do you have to contest a will in the UK?

You have the right to challenge a will without any time limitations, but the sooner you take action, the better. This is because 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. Claims for reasonable financial provision, however, must be brought within six months of the date of any Grant of Probate / Letters of Administration.

How much does contesting a will in the UK cost to contest a will?

The cost of contesting a will can vary depending on multiple factors, such as the complexity of the case, the legal fees charged by your solicitor or law firm, and at what point 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 in most cases, over 95%, will disputes are settled without involving the court.

Discussing and clarifying the potential costs with your solicitor upfront is crucial. We can provide you with an estimate of the expected costs based on the specifics of your case. 

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.

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, which may include 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 they are 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 as far as 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 also be potentially claimed from the unsuccessful party if the court deems that appropriate. However, it's important to note that this is not always guaranteed, and the court has discretion in awarding costs.

"Under the direction of the 'excellent 'Craig Ridge, the team acts for executors and beneficiaries on a variety of estate claims and on challenges to wills" Legal 500

Contesting a will after probate

Taking prompt action is crucial if you suspect you have valid grounds for contesting a will. Notifying the executor(s) of the will of your claim before any distribution of assets takes place is generally easier. In cases where a will may be invalid, it is possible to enter a 'caveat' against the estate to prevent the issue of a grant of probate.

While contesting a will after probate has been granted is technically possible, it can pose practical challenges if assets have already been distributed. Therefore, taking swift action and seeking legal advice is advisable if you believe you have valid grounds for contesting a will. 

Proactively engaging with the executor(s) and considering legal options at the earliest opportunity can help protect your interests and increase the likelihood of a favourable outcome in a will dispute. Remember, every case is unique, and seeking professional legal guidance is essential to understand the specific legal requirements and potential implications of contesting a will after probate has been granted.

What is the success rate of contesting a will in the UK?

Understanding the success rate of contesting a will in the UK is a common concern for individuals considering this legal action. While success rates can vary depending on various factors, such as the case's specific circumstances, the evidence available, and the legal expertise involved, it's essential to approach this topic with realistic expectations.

Contesting a will in the UK can be a complex and challenging legal process. The success rate can depend on the merits of the grounds of dispute, the strength of evidence, and the legal strategies employed. It's important to note that 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 reaching a settlement 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.

A survey conducted by OnePoll for IBB showed that 60% of people who decided to pursue an inheritance dispute received a financial benefit. 

FAQs 

Is it worth contesting a will UK?

Before embarking on contesting a will in the UK, it's crucial to thoroughly assess whether the potential benefits of challenging the will outweigh the costs, risks, and time involved in bringing a legal challenge. Our experienced contentious probate team is well-equipped to guide you through this analysis, ensuring you make an informed decision that aligns with your best interests.

Will we have to go to court?

When contesting a will, court involvement may not always be inevitable. Depending on the circumstances, parties can reach an out-of-court agreement to resolve the dispute. In some cases, court approval may be required for the settlement. Our experienced legal team can explore all available options, including negotiation and alternative dispute resolution, to avoid the need for court intervention. 

Is it hard to contest a will UK?

Challenging a will in the UK can be complex. To successfully contest a will, claimants must provide sufficient evidence to convince a judge on the balance of probability that the will is invalid. This requires thorough investigations and the gathering of compelling evidence. Our experienced legal team can guide you through this process, ensuring the necessary evidence supports your claim. 

Who can contest a will? 

The ability to contest a will depends upon the nature of the intended challenge. 

Inheritance Act claims 

To be eligible to bring an application under the Inheritance Act, you will need to have one of the following relationships to the Deceased or meet one of the following criteria:

• the spouse or civil partner or former spouse or former civil partner of the deceased (provided you have not remarried or formed a subsequent civil partnership);
• the child of the deceased or treated by the Deceased as a child in relation to any family in which the deceased had at any time stood in the role of a parent;
• any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.

Challenge to the validity of the will

To challenge the validity of a will at court, you will need to have what is known as legal standing, i.e an interest in the outcome of the claim. Typically, you will either need to be a beneficiary of the terms of a previous will or, in the absence of a previous will, you will need to be a beneficiary of the laws of intestacy. 

Proprietary estoppel

To be eligible 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; and 
• that you have suffered detriment in reliance upon the promise.
  

How can you stop people from contesting your will?

While it is impossible to entirely prevent someone from contesting your will, you can take steps to minimise the risk of such challenges. One effective measure is to have your will prepared by experienced solicitors. This ensures that the will is drafted in compliance with the Wills Act, with proper consideration of the testator's capacity and understanding. Solicitors can also provide expert guidance on best practices for signing the will. By entrusting the drafting and execution of your will to qualified professionals, you can reduce the likelihood of a successful challenge. 

How long after probate can you challenge a will?

There is no specific time limitation for challenging a will in the UK. However, it is advisable to act promptly, as the sooner you contest a will, the more likely it is to be a reasonable pursuit. This is because estates are often administered within 12 to 18 months of the date of death, and assets may be distributed during this time. It is crucial to make your case known before the distribution of assets to ensure that your challenge can be appropriately considered. There is, however, a time limit to bring an application for financial provision under the Inheritance Act, being 6 months from the date of the Grant of Probate / Letters of Administration being obtained by the Personal Representatives.

Can you stop probate?

A grant of probate can be temporarily halted by placing a Caveat on the estate, which can be quickly done online. The executors can challenge the caveat by filing a "warning" against it. The caveat will be removed if no response is filed to the warning. However, if you wish to make the caveat permanent, you can enter an Appearance to a Warning, after which a court order can only remove it. Our lawyers can guide you through utilising a caveat to halt probate and protect your interests temporarily.

For further information please contact Craig Ridge, Georgia Stott or Joe Martin or email us.