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What are the grounds for contesting a Will?

Grounds for challenging a Will

Section 9 of the Wills Act 1837 confirms that for an order to be valid, a Will must be in writing, signed by the testator (or someone else in the testator’s presence and at their direction), and the testator must intend for the Will to be valid when signing it.

If the Will has been properly executed, it is assumed to be valid unless one of the below reasons comes to light:

  • Lack of testamentary capacity.
  • Lack of knowledge and approval.
  • Undue influence.
  • Fraudulent Wills or forged Wills.

What is challenging a Will UK?

To contest a Will is to challenge the validity of the Will. A Will can be invalid for various reasons, including the person who made the Will not having the necessary mental and legal capacity or not understanding the content of the Will, the Will-maker being coerced by other people, or the Will being fraudulent. A claim can also be brought under the Inheritance Act 1975 for reasonable financial provision if the Will does not provide reasonable financial provision for family members or those who have been maintained by the deceased during their lifetime.

How to contest a Will?

If you want to contest a Will, the best way is to enter a caveat with the Probate Registry. This gives you 6 months to determine whether or not you have reasonable grounds for challenging the Will, and this can be extended. The executors do have the right to lodge a ‘warning’ to the Probate Registry to try to have the caveat removed. If this happens, you may wish to substantiate your caveat through an ‘appearance’, but doing this means the matter would have to be resolved by an Order of the Court, likely resulting in expensive legal costs.

Can you contest a Will after probate?

If your claim is for reasonable financial provision, you have a time limit of 6 months from probate being issued. If you’re challenging the validity of the Will, then there is no time limit. It is, however, advisable to act as quickly as possible, as doing so once the estate has already been distributed can cause additional difficulties.

Who can challenge a Will?

Anyone who is worried the Will might be invalid can contest it. This is usually someone with an interest in the estate, for example being unexpectedly left out of the Will or inheriting less than expected. In circumstances where the Will has been successfully challenged, the estate will usually be distributed in accordance with the most recent valid version of the Will. If your challenge is successful, it’s unlikely you will get anything from the estate unless you were on the most recent valid Will, or have a claim for reasonable financial provision. If there is no previous valid Will, the estate will be distributed in line with the rules of intestacy.

If you want to challenge a Will for failing to make reasonable financial provision, you’ll need to be a financial dependent, usually one of the following: a child, spouse, civil partner, ex-spouses or ex-civil partners yet to remarry, or a cohabitating partner. It’s also worth noting that, through the rules of intestacy, the estate will go to the Crown if there are no surviving family members.

What if there is a ‘no contest’ clause?

A person making a Will or setting up a trust may include a ‘no contest’ clause to prevent it from being challenged after they die. These clauses are usually specific to a certain asset or person, should they expect someone to make a claim for something that they don’t want them to have. It is, however, still possible to challenge a Will that has a no contest clause. The no contest clause does not apply if the Will is found to be invalid, but if the challenge is unsuccessful, then the clause is still valid.

Can you contest a Will before the person has died?

No, as their Will may not yet be finalised. If you are worried about the terms of a Will or the circumstances in which it was created, you must talk to the testator while they are still alive. Although, this may not be the case for a Statutory Will that has been drawn up for a person who has lost mental capacity. In this case, you may want to challenge it while they are alive if you disagree with the terms of the Will.

How long does it take to receive an inheritance after probate?

Generally, it should take around 6 months after the Grant of Probate has been issued for the beneficiaries to receive their inheritance, however, it has been known to take longer than 6 months. Of course, if you’re contesting the Will then there is potential for further delays during the whole process. Also, it’s worth bearing in mind that some estates are more complicated than others, therefore taking longer to settle an inheritance. Variables that could prolong this include selling shares, selling property, or finding a missing beneficiary.