dispute resolution

How do you contest a will?

Are you struggling with the idea of contesting, or challenging a will?

It can be a tough decision, but we will explain when it might be appropriate and walk you through the process.

It has become much more commonplace for people to contest, or challenge wills. Family members remarrying, changing family structures and difficult economic circumstances could all be partly responsible for this trend.

When a family member or loved one dies, it is an emotional time.

If you find out you have been ‘cut out’ of a will for some reason or there is a disagreement about what is outlined in the Will, it can be devastating. When family, feelings and finances collide, grievances can quickly escalate.

So what should you do if you find yourself in such a situation?

When can a will be contested?

A Will can be contested if it is invalid, or if a dependent has not been adequately provided for in the Will.

A Will could be invalid for a number of reasons:

Under pressure: If the testator (i.e. the person who made the Will) was unduly influenced or forced into making the will, then the court could set aside part of the document or all of it. Such challenges may be a result of someone being concerned about a particular family member or other acquaintance putting pressure on the person.

Fraud and forgery: The court could set aside part or all of the Will if there are suspicions of fraud or forgery. Forgery is difficult to prove and is usually coupled with an allegation of lack of knowledge and approval. Usually an expert is needed to examine the signature and documents.

Mental ability: A Will can be contested if the testator didn’t have the mental capacity to understand the implications of what they were doing when the Will was drawn up. They must understand the consequences of any new Will. If the Testator had some form of mental illness, such as dementia or Alzheimer’s, then they will generally not be considered capable of making a new Will.

It is a fact that people are generally living longer than previous generations. Our aging population means there are a greater number of people with dementia and as a result there has been an increase in families contesting wills on the basis of a lack of mental capacity.

Age: A person has to be old enough to understand what they are doing when they create a new Will. Anyone under the age of eighteen is considered too young to make a Will.

Following procedures: For a Will to be valid, it normally has to comply with certain legal requirements. It must be in writing, be signed and witnessed correctly. The testator should sign the document using his or her normal signature, but a mark or initials – or even a stamped signature – could be sufficient in some instances. The testator has to sign or acknowledge his signature on the will in the presence of two independent witnesses who must be present at the same time as the signing of the Will.

The law does allow a will to be signed by someone on behalf of the testator in some circumstances, such as if the Testator has very poor sight or if they are immobile. If the Will is signed by someone other than the testator, then the testator has to indicate to two or more witnesses that the other signature was used at his or her request.

Revoked will: If a Will has been revoked (i.e. cancelled, annulled or withdrawn) then it is not valid. A Will is always revoked if the testator marries or enters a civil partnership unless it is specifically written to cover an upcoming wedding or civil partnership. The testator can also declare his or her intention to revoke the will in writing. Similarly, if a person gets divorced then any gift to the former husband or wife is revoked.

What if someone hasn’t been provided for in the Will?

Generally, the testator (i.e. the person who made the Will) is able to leave his or her estate to whoever they want to.

However, if the Will doesn’t make “reasonable financial provision” for certain people then the court has the power to make sure they are provided for.

Under the Inheritance (Provision for Family and Dependents) Act 1975, the following people can contest a Will if they haven’t been left anything or they feel they haven’t been left enough:

• A spouse or civil partner
• A former spouse or civil partner if they have not remarried or entered into a new civil partnership
• A child
• Any person who was treated as a child of the family in relation to a marriage which the deceased was at any time a part of
• Any person who immediately before the death was being looked after, either wholly or partly, by the deceased
• Any person who lived as their spouse in the same household during the whole two year period ending immediately before they died.

The Court will take a number of factors into account, including:

• the financial circumstances of the applicant
• the size of any estate
• any moral obligations the deceased had to the applicant

If the Will specifically states that a lesser amount is being left to the applicant for a particular reason then it can be very difficult to bring a successful claim.

If you are a spouse or civil partner of the deceased, the Court will also take into account factors such as:

• your age
• the length of time you have been married to the deceased
• how much you contributed to looking after the family
• how much you might have received in the event that you had divorced the deceased before they died

Challenging circumstances

There are many situations that may be lead to someone contesting a Will. Typical events could include:

Step families: If a person has children from a first marriage and then remarries but subsequently dies leaving everything to their new spouse then the children from the first marriage may have a valid claim on the estate of the deceased.

Suspected pressure: Some elderly people who are looked after by a carer or neighbour can be vulnerable. They might worry that their carer or neighbour will stop coming to see them unless they leave them something in their Will. While in some instances this will be fair and lawful, there could be cases where they have felt under pressure to change their will. If family members suspect their relative was forced into including someone in their Will, they could contest this in court.

Thinking of contesting a Will?

Contesting a Will can be a time-consuming, expensive and emotionally draining process.

No two cases are the same and there will be all sorts of factors that need to be considered.

It is important to act quickly to prevent the estate being administered in line with the invalid Will and a solicitor should be consulted at the earliest possible opportunity.

Normally, if you want to make an application under the Inheritance (Provision for Family and Dependants) Act 1975, you have to do this within six months of the grant of probate being issued.

It’s worth bearing in mind that there is no guarantee you will get the financial benefit you think you are entitled to at the end of the process.

There are times when parents favour one child or cut close relatives out of their will completely. Sometimes people give a lot of financial help to one child throughout their adult life and then try to redress the balance in their will by leaving their money to their other child.

The costs of contesting a Will can come out of the estate of the deceased. Therefore a long and protracted court case can reduce the value of any estate significantly.

The requests in a Will may not seem to fair to everyone involved, but if you do decide to contest it, it will be up to the courts to weigh up all the evidence. If you launch an unreasonable court action and lose, the likelihood is that you will have to pay a percentage of the successful party’s costs in addition to your own legal fees.

Mediation is becoming a more common way to try and settle litigious claims as it can be much cheaper than going to court. However, contentious probate claims may not be suitable for this form of resolution so you may have to go to court.

Seeking legal advice as soon as possible can help you save time and money in the long run.

We can help

If you think there is a problem with the Will of a person who has recently died or feel you have not been provided for then contact us.

Our dispute resolution team will listen to your concerns and give you specific advice based on your individual circumstances. They are experienced in claims of this type and will be able to help with any problems you have.

Please ask for contact Daniel Zakis on 0121 705 7571 or email him at danielzakis@wallacerobinson.co.uk

Further reading:

Why should I make a Will? (Wills & Probate)

Making or amending a Will if you are divorced (Wills & Probate)

What is a Power of Attorney? (Wills & Probate)

This article is for general information purposes only. It does not constitute technical, financial, legal advice or any other type of professional advice and is no substitute for specific advice based on your individual circumstances. We do not accept responsibility or liability for any actions taken based on the information in this article. For more information, please click here.