How do I contest a Will?

The death of a loved one is one of the hardest things in life to go through. If there is also a dispute over their Will, this can make it even more distressing. You may feel that they were not of sound mind when they made their Will or perhaps even were unduly influenced or pressured by other beneficiaries. If you find yourself in this situation, you can take comfort in the fact that it is sometimes possible to successfully contest a Will.

The law in the UK states that people may leave their assets to whomever they wish.  Having said that, there are some conditions to this which are as follows:

  • You must provide for your dependantsunder the Inheritance Act of 1975 a Will can be contested if it fails to make reasonable provision for spouses and children.  The law also covers co-habiting partners, provided they have lived with the deceased for two years.
  • You must be of sound mind when you make your Willa Will may be called into question if it is thought that the person may have been unduly influenced by a beneficiary.  If nothing was left to a close family member consideration may be given to whether the person was entirely rational at the time of making the Will.
  • The Will must be validwith the rise in DIY Wills, invalid Wills are becoming more common.  They are frequently not drawn up properly and sometimes not witnessed correctly.

Ilott v The Blue Cross and others in the Supreme Court
One of the most high-profile cases of a Will being contested in recent years was a decade-long legal battle when a daughter was disinherited by her mother for eloping with her boyfriend when she was 17.  Her mother left her entire estate of around £500,000 to three animal charities. The daughter challenged the Will under the Inheritance (Provision for Family and Dependants) Act, and was initially awarded £50,000, on the basis she was unreasonably excluded.  She then appealed to try to get a larger share of the estate. The Court of Appeal awarded her £164,000 but this was then challenged by the three animal charities at the Supreme Court and the decision reversed, resulting in the daughter receiving £50,000, the amount she was originally offered when she first contested the Will.  You can read more about this fascinating case here

Whilst Wills are not regularly overturned, this case highlights that it is possible if the court considers them to be especially unreasonable.  The number of cases in recent years show that it is becoming more common. 

So, if you feel that you have not received the inheritance which should have come to you, it could be worth contesting a Will.  Having said that, it must be remembered that the process takes time, can be costly and will not always be successful.

How to challenge a Will
It is much more difficult to challenge a Will once probate has been granted as the estate may have already been distributed amongst the beneficiaries. The limitation for inheritance act claims is 6 months from the date of the grant of probate, so it is best to challenge it as soon as possible, ideally before probate has been granted.

To begin the process of contesting or challenging a Will, a ‘caveat’ must be filed at the Probate Registry to prevent probate being taken out in the meantime.   Once the ‘caveat’ has been filed, the beneficiaries may issue what is referred to as a ‘warning document’ to object to any claim.  This means that the person contesting the will must state their interest in the estate of the person who has died, a process known as an ‘appearance’.

If in the end, it’s decided the Will is not valid, then any previous version of the Will is likely to be submitted for probate. If there isn’t a previous version, then the rules of intestacy apply. It is therefore sensible to check whether there is any benefit to disputing a Will before pursuing a claim.

The rules of intestacy mean that in the absence of a Will, your estate to your relatives, beginning with a spouse or civil partner. After they are taken into consideration, the estate passes to any children left behind.

Get in touch
If you would like to discuss contesting a Will, our friendly and experienced team at Penderlaw can help you.  Just drop us a line or call us on 01872 241408.