Contesting a Will is a complex legal process that can arise where someone has concerns about the validity of a deceased person’s (“testator’s”) last wishes, as set out in a Will.
While the intention of a Will is to distribute assets and property according to the testator’s wishes, there are circumstances where interested parties, for example, the testator’s family, may have genuine reasons to challenge the validity of a Will or to question whether it has been properly executed.
Potential Grounds for Contesting a Will
Contesting a Will can only be done in one of a limited number of circumstances including the following:
- Lack of Testamentary Capacity: A belief that the testator did not have the mental capacity to make a Will at the relevant time. For example, if the testator was suffering from advanced dementia or a mental illness.
- Undue Influence: If the testator was coerced (persuaded) into making a Will or changing an existing Will by another person, usually someone who would benefit from any changes to the Will.
- Lack of Knowledge and Approval: If the testator did not properly understand and approve the content of their Will. For example, if the Will is particularly complex or the testator was in some way vulnerable and didn’t understand what they were signing.
- Lack of Due Execution: If the formalities required for the proper execution (signing) of a Will were not followed when the Will was made. For example, if the Will was not signed by the testator.
- Fraud or forgery: If there is evidence to suggest that the Will was forged or falsified, it can be challenged on validity grounds.
- Revocation: A Will is revoked by marriage or by the testator making a more recent Will.
How to Contest a Will
- Consult a Lawyer: It is important to obtain proper legal advice before taking any action or issuing a claim. An experienced Will Dispute lawyer will be able to assess the facts, evaluate the merits of any claim and advise on an appropriate course of action. They can also advise you on the likely legal costs, which will be important in considering the potential risks and benefits of any legal action. The general principle in civil claims such as contesting a Will is that “costs follow the event”. In other words, the loser pays the winner’s costs. This should be borne in mind by any potential claimant before embarking on costly court proceedings.
- Gather Evidence: You will need to obtain any evidence in support of your claim. This may include obtaining the testator’s medical records, financial records and statements from witnesses, such as family members, any witnesses to the Will or earlier Wills. An experienced Will Dispute lawyer will assist with this and will be able to advise what evidence is appropriate in the circumstances.
- Enter a Caveat: A caveat is a document that can be lodged with the probate registry to prevent the testator’s estate being administered. Caveats last for six months and can be renewed. You should, however, take specialist advice before lodging a caveat as this can result in costly court proceedings being issued against you.
- Send a Letter of Claim: The courts require parties to attempt to resolve matters before issuing a claim. There are specific “pre-action protocols” which deal with the information required to be included in a letter of claim. It is important to take legal advice to ensure that all the relevant information is included at a pre-action stage.
- Consider Alternative Dispute Resolution (“ADR”) and Settlement: It is usually beneficial to try to resolve matters before issuing a claim to avoid the expense and stress of court proceedings. Mediation can be conducted at relatively low cost (compared to court proceedings) and at an early stage. If an agreement is reached, it will be set out in a formal agreement which is legally binding.
- Issue Court Proceedings: As a last resort, your lawyer will be able to assist you with preparing the necessary legal documents to start the claim process. They will also advise you on timescales and potential costs as matters proceed.
Contesting a Will is a complex and often emotionally charged process that should not be embarked upon lightly. It is important to be as well prepared as you can and to gather evidence in support.
If you believe you have grounds to contest a Will, you should contact our Will Dispute Lawyers who have many years’ experience in advising on these sorts of matters. The PowellsLaw Civil Litigation Team can be contacted on 01934 623501 or emailed on helpforyou@powellslaw.com.
