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How do I contest a Will?

There are many reasons why someone may feel that a Will is unfair or wrong.

In the UK we enjoy a freedom to leave our estates by Will to whoever we please.

However, there are occasions when a Will may be challenged:

  • The Inheritance (Provision for Family and Dependants) Act 1975 gives certain relatives, who may feel hard done by, the right to ask the courts to review a Will and to make amends if it is found that the Will is unfair.
  • A Will might be invalid because of the circumstances in which it was made.
  • The person making the Will might have lacked mental capacity at that time.
  • Pressure and undue influence might have been applied so that the Will does not properly reflect the individual’s true wishes.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975

Certain categories of individuals can make a claim against an estate for reasonable financial provision in circumstances where someone on whom they are financially dependent has died without leaving them a sufficient inheritance for their needs.

Claims can be made regardless of whether a Will exists or not as a successful claim will result in the court changing the way an estate is distributed.

What is considered to be ‘reasonable provision’ will vary depending on the circumstances of the case but in order to decide this a court will consider:

  • The claimant’s current and future financial resources and needs alongside that of any other person who may have such a need in the future.
  • The current and future financial resources and needs of any beneficiaries of the estate.
  • The deceased’s obligations to you and other persons/beneficiaries.
  • Any physical or mental disability that you or any beneficiaries have.

Invalid Wills

In accordance with section 9 of the Wills Act 1837, for a Will to be valid it must be:

  • In writing
  • Signed by the testator or by some other person in their presence and by their direction
  • Signed or acknowledged by the testator in the presence of two or more witnesses present at the same time
  • Witnessed, attested and signed by each witness in the presence of the testator

If the correct procedures have not been followed, then a challenge to the Will’s validity can be made.

Lack of mental capacity

When making a Will an individual should:

  • Understand they are making a Will and what its effect will be upon their death
  • Understand the extent of their estate
  • Understand and appreciate any claims that could be made against their estate
  • Not be suffering from any disorder of the mind that would impair or influence their making of a Will.

A challenge to the validity of a Will can be made if the deceased lacked the mental capacity necessary to make a Will.

Undue influence

If it is considered an individual has been coerced or compelled into making a Will that they did not want to make then a challenge to the Will’s validity can be made.

What amounts to coercion varies and will depend on the individual making the Will.  By way of example, there is less force in coercing an individual considered to be vulnerable, frail or elderly.

What should I do if I believe I have grounds to contest a Will?

If you believe you have grounds to contest a Will, our contentious probate Solicitors will be able to provide advice and, if there are grounds, we can help you formally challenge a Will.

Lorraine Walker, a Solicitor specialising in contentious probate at Mander Hadley, said: “A claim under the Inheritance Act must be made within 6 months from the date of issue of the grant of probate.

“We recommend contacting us as soon as possible upon learning you have not been properly provided for under a Will or the intestacy rules.

“There is no time limit to make a claim disputing the validity of a Will but we recommend contacting us as quickly as possible and preferably before estate assets have been distributed.  Claims may be rejected by the court if it considers there has been undue delay in bringing a claim.”

To help you find out more about contesting a Will, Lorraine has recorded a new podcast on the topic, which is available to listen to here for free.

For further information and advice about contested Wills, please get in touch with us.

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