Everyone’s Will should be a true reflection of their wishes. However, sometimes situations arise where it is thought that this has not been the case. Tegan Pownall explores the subject of how to deal with inheritance disputes, contesting a Will and what is referred to in legal terms as contentious probate.

In simple terms, if you believe that a Will has been forged, or the person who made it was put under pressure to leave their Estate in a way which wasn’t really their intention, then it is possible to contest a Will.

Another common scenario which arises is where someone feels they have been unfairly left out of a Will, or if there is no Will, that they have not been provided for via the rules of intestacy. Again, it is potentially possible to make a claim in this situation.

A battle of Wills
Interestingly, claims against Estates have been on the increase in recent years. As the asset rich baby boomer generation reach their later years, their passing seems to be resulting in an increase in the number of inheritance disputes.  This is partially driven by the complexities of modern family relationships encompassing second marriages and blended families which sometimes result in stepchildren being disinherited. Earlier this year it was reported in the Guardian that as many as 10,000 people in England and Wales are disputing Wills every year.

What are grounds to contest a Will?

The validity of a Will can be brought into question for any of the following reasons:

• Lack of capacity
   If there was any doubt that the person had capacity when they were making their Will, a capacity assessment by a medical professional should have been carried out at the time of drawing up the Will. If this was not done and there is doubt that they did not understand the nature of what they were doing, then the validity of their Will could be disputed.
• Undue influence
  If it is thought that the person making the Will came under pressure in terms of what they put in their Will, then this again calls the validity of the Will into question. Undue influence is a legal term which means that someone has been manipulated into a decision they would not have made themselves.
• Administrative errors
  These are perhaps more common than you may think and can result in a Will being invalid.  It may not have been signed or dated correctly, it may not have been witnessed properly, or could have been poorly drafted.
• Fraud
  If there is a suspicion that the Will has been altered or forged then this will also obviously mean that the Will could potentially be invalid.
• The Will has been revoked
  A Will can be revoked in a number of ways.  These include:  if a person has made a new Will or if they have got remarried since the Will was made.
• Where reasonable provision has not been made
  This is another reason whereby a Will can be contested. The Inheritance (Provision for Family and Dependants) Act of 1975 enables those who believe they have not been adequately provided for in the Will (or if there is no Will, under the rules of intestacy) to contest a Will. However, it should be pointed out that only certain categories of individuals can claim under this act. These would include current and former spouses, children, long-term cohabitees, and anyone maintained financially by the deceased.  A judge would decide by considering a number of factors, including the needs of those excluded from the Will / by the rules of intestacy, the size of the Estate and the conduct of the person contesting the Will.
• Proprietary estoppel
  A common reason to contest a Will, particularly within farming families, this is a legal principle designed to prevent unfair situations resulting from promises made informally which are subsequently reneged upon. It is often seen in faming families where the younger generation have been promised they will receive the farm as an inheritance in return for working in the family business.

Contesting a Will FAQs

Below are some answers to common questions our team get asked about contesting a Will, from deadlines to make a claim, costs, who pays and the process involved.

What does it cost to contest a Will?

It is hard to put an exact figure on this as it obviously depends on the complexity of the matter i.e. the size of the Estate, how many beneficiaries are involved etc and of course,  whether the dispute settles or has to be determined by the Court. However, challenging a Will is unavoidably a costly exercise, and this is an important factor to consider when deciding whether to pursue a claim.

Who is liable for the cost of contesting a Will?

A common myth is that the costs of contesting a Will always come from the Estate.  This is not the case.  The costs of such litigation are generally met by the unsuccessful party, but each case is different and there are exceptions to this principle.

How long does it take to contest a Will?

Again, this not easy to estimate as it also depends on a lot of factors, such as whether your opponent and any third parties cooperate, and whether a claim has to go to Court.

How long do you have to contest a Will?

Time is usually of the essence when contesting a Will, to avoid the deceased’s assets being distributed. If you are challenging the validity of a Will, there is no time limit, but it is much harder to prove this type of claim once a grant of Probate has been issued. A claim under the Inheritance (Provision for Family and Dependants) Act must be brought within six months of a grant of Probate being issued. It is therefore important to seek advice as soon as you can after a person has died and you realise there may need to be a challenge.

What is the process of contesting a Will?

• Stopping Probate
  If you believe a Will is not valid, the first stage is for a stop to be put on Probate being granted at the Probate Registry – this is called entering a Caveat. This stops the process of Probate meaning that the Estate cannot be distributed according to the Will.  The Caveat is in place for a period of 6 months (unless it is challenged or withdrawn), but this can be extended for another 6 months if required. The time should then be used to investigate the making of the Will to decide whether or not to bring a formal claim. If you are challenging a Will for a reason other than validity, a Caveat is not always the right option, which puts more pressure on you because of the time limit to bring a claim under the Inheritance (Provision for Family and Dependants) Act. It is therefore important that you seek advice at an early stage, so that the personal representatives can be put on notice as soon as possible that you intend to bring a challenge.
• Information gathering
  Evidence will need to be collected to establish whether there is a claim to be made. This might include medical records of the person who has died, and a copy of the Will file from the solicitors who prepared it.
• Negotiation / Mediation
  An attempt is made to resolve the dispute via mediation and negotiation. If a resolution cannot be reached in this way, then the matter will proceed to court if the funds are available to do this.
• Court Proceedings
  If out of court resolution has been unsuccessful, the next stage would be to make a claim through the Court.  Each side will have the opportunity to put their case forward and, if settlement is still not reached, a judge will make a decision at a trial. To put things in perspective, it should be remembered that it is quite rare for inheritance disputes to go to court.  Roughly 50% of cases settle before court proceedings are issued and only around 2% reach final trial.

Get in touch

If you would like to speak to our friendly and experienced Disputes team about contesting a Will, you can call us on 01872 241408 or email info@penderlaw.co.uk