When a deceased person leaves a valid will, in most instances probate will be granted without any challenge. In some cases, however, there may be cause to contest the contents of the will. Contesting a will can be an emotional challenge and not one that anyone should enter into lightly. Contested probate can be a stressful, protracted and pressured process so it’s vital to understand what it is, why it’s sometimes a correct course of action and what the process is.
What is a contested probate?
In simple terms, it’s a dispute between parties with an interest in the estate of a deceased person about how that estate is distributed. There are a number of reasons why someone may wish to contest a will, but only some of these reasons are legally valid and have a chance of success.
How is a will valid?
The validity or otherwise of a will is determined by the Wills Act of 1837. There are several requirements within this act which determines whether or not a will can be regarded as valid. A will disposes of the deceased person’s entire assets so Section 9 of The Wills Act makes provision to ensure that a will is valid
The basic requirements for a will to be valid are:
- The person making the will needs to be at least 18 years of age.
- It must have been signed by the person making the will with the express intention of creating a valid will.
- Two people need to be present when the will is signed. They can either be present as the signature is added or they can be told by the person making the will that it is their signature.
- The witnesses then sign the will, knowing that it is the genuine signature of the person making the will and that the will was signed with the express intention of creating a valid will.
If any of these requirements are missing then the will not be valid.
On what grounds can you contest a will?
A will cannot be contested merely because someone feels it to be unfair. Possible grounds for contesting a will include.
An invalid will
If someone believes that a will is invalid because it wasn’t signed or witnessed correctly then that may be grounds on which to challenge its validity.
Testamentary capacity
If you believe that the deceased person lacked the mental or physical capacity to fully understand, produce or sign their will, then you may be able to contest it. This might be because they suffered from dementia and no Court of Protection deputyship was put in place beforehand.
Claim for Financial Provision
If someone was financially dependent on the deceased party but provision was not made for them in the will then this may be grounds to contest that will. Contesting probate in such circumstances would be about securing adequate provision for them going forward.
Fraud or forgery
If you believe the will has been forged or is otherwise fraudulent then you can contest its contents.
Undue influence
If you suspect that the person making the will was placed under undue pressure from another party then this can be grounds to contest the contents of the will.
It’s very important that the correct grounds are selected for contesting the will, as this will have an impact on who is able to contest it. If there are grounds to believe that the will is not valid then anyone can contest it.
If the will is being contested for any other reason there are restrictions on who can contest its contents. The people who can contest a will if it’s being contested for any other reason than its overall validity are:
- A spouse, regardless of whether or not they were separated from the deceased at the time of their death.
- A beneficiary of the will.
- A direct family member such as a child or a grandchild.
- Someone who was owed money by the deceased.
- A financial dependent of the deceased.
- Someone who was promised an item by the deceased, which was then not included within the will.
How do you contest a will?
If you believe you have legal grounds to contest a will you should seek legal advice immediately. A legal specialist will be able to advise if they think you have a valid case. You will need to provide a copy of the will along with any evidence you can provide to support your claim. Your solicitor will be able to advise about what might be suitable evidence depending on the grounds on which your claim is based.
Can you contest a will after probate?
It’s advisable to contest a will as soon as you believe you have grounds to do so. If you’re contesting the validity of the will then there are no time limits, for other grounds there is a time limit of 6 months.
In all cases your solicitor will be able to advise. As a rule, it’s much easier to challenge a will before probate has been settled and the assets have been distributed. Your chances of success will ultimately depend on the grounds on which you’re contesting a will and the strength of your evidence.
What is a caveat?
A caveat is a temporary restriction that can be placed on a will preventing assets, be that money, property or possessions, being obtained from a will when someone dies. It’s most commonly used when there are any doubts about the validity of the will and will remain in place for 6 months. It will then need to be renewed to prevent it automatically expiring. If, however, the person who asked for the caveat wants it to be removed then this can be done via a letter to the probate registry.
How can we help?
At Mark Reynolds Solicitors, our Wills and Probate team has extensive experience of successfully contesting wills. If you believe you may have a claim then we will be happy to provide confidential and impartial advice. Call 0800 002 9577 or get in touch via our contact page.