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If a person has been left out of the Will of a loved-one, was expecting to inherit something which has ended up going to someone else, or has inherited less than they were expecting, it may be possible for them to contest either the Will or the distributions which are to be made out of the estate.
Contesting a Will can be a complex, stressful and expensive process, so it helps to have expert legal advice on your side. Our specialist solicitors have years of experience contesting Wills, successfully acting for beneficiaries, family members, executors and charities who have found themselves involved in a dispute over a Will.
There are a number of reasons that a person might consider contesting a Will or making a claim against an estate:
Under the Wills Act 1837 there are strict rules about Wills being properly signed with two witnesses present, and it is not uncommon for mistakes to be made in this process, resulting in it not being properly executed, rendering it an invalid Will. Where a Will does not meet the formalities of the Wills Act 1837, it may be possible for anyone who loses out due to the Will being invalid to bring a claim against the firm which drafted the Will for professional negligence.
A person must make and sign their own Will – it cannot be done by somebody else – and once a Will has been executed there are strict formalities in place to change it. A challenge can be brought in respect of fraudulent wills if it looks like someone has made a Will claiming to be someone else, or if amendments have been made without following the proper formalities.
Where there is evidence that someone has put pressure of the person writing the Will, for example to give gifts in their Will which they would not have done if they had not been pressured – called undue influence – it may be possible to successfully challenge the Will. This is particularly prevalent among vulnerable and elderly people who are susceptible to being pressurised, with the person exerting undue influence often seeking to benefit from the Will themselves, against the deceased’s wishes. To successfully contest a Will on this basis, the person challenging the Will must produce sufficient evidence that actual undue influence occurred; this can be difficult where the undue influence was exerted in private, with no witnesses beyond the testator and the person accused of exercising undue influence. For this reason, it is common to combing a claim relying on undue influence with other grounds for contesting a Will, which is discussed further below.
The person making the Will must have – in legal terms – testamentary capacity at the time it is made. This means they must understand the consequences of making it and know what assets they will be giving away. Often this is referred to as mental capacity, or being of sound mind. You will need to get hold of their medical records and evidence from medical professionals to see whether there is anything in their medical history which would support a claim that they lacked capacity. If they did lack capacity, the Will is not valid. Lack of testamentary capacity is one of the more common grounds for contesting a Will, and our guide on mental capacity explains what testamentary capacity is, how to prove lack of testamentary capacity, and the relationship between testamentary capacity and the Mental Capacity Act 2005.
It is not uncommon for a family member, friend, or carer to help someone make a Will. Sometimes they will arrange appointments with solicitors and attend meetings, or they might even write the Will themselves. This can result in provisions being included which do not reflect the testator’s intentions or true wishes, meaning the testator did not have knowledge and approval of the contents of the Will, making it invalid.
The Will under challenge will be revoked if the testator has married or entered a civil partnership since it was made, if they executed a more recent Will, or if they took other steps to revoke the Will. It is usually fairly straightforward to legally challenge a Will on this basis, so long as there is clear evidence of the marriage, partnership, or more recent Will.
It is possible to ask the Court to correct a Will if it can be shown that the Will does not reflect the person’s wishes. This is known as rectification; it usually occurs when the Will writer – for example the solicitor – made an error and did not properly reflect the testator’s intentions in the Will. Rectification claims often involve the negligence of a solicitor, so it may also be possible for anyone suffers loss from the error to bring a professional negligence claim.
It is possible for certain categories of people linked to the deceased to bring a claim for reasonable financial provision if the Will does not sufficiently provide for them. These include the deceased’s children, spouse or ex-spouse, civil partner or ex-civil partner, and anyone who was financially maintained by the deceased before they passed away. This is known as a 1975 Act claim . If successful, an order will be made that the Claimant is entitled to a share of or an interest in the assets of the estate, to ensure that they receive reasonable financial provision from the estate, which can sometimes result in them being awarded the deceased’s entire estate.
In certain circumstances the Court is able to intervene if a testator promised to make a gift to someone but did not include that promise in their Will. This is known as proprietary estoppel. Our guide explains what needs to be shown to bring a successful proprietary estoppel claim.
Yes, claims will often rely on several grounds for arguing that a Will is invalid, especially when the Will appears to have been written in suspicious circumstances. For example, contesting a Will due to lack of testamentary capacity might lend itself to a claim that the person was placed under undue influence due to being vulnerable, and that they did not have knowledge and approval of the Will as a result of their condition.
Anyone related to or connected with the person who made the Will might consider they have legitimate grounds for contesting a Will. Typically, children, spouses, civil partners, and charities are among the most common categories of Claimant, but strictly speaking – apart from claims under the 1975 Act – anyone who believes they have sufficient evidence for contesting a Will may be able to do so.
If the executor has not yet obtained probate and you want to contest a Will, you can enter what is known as a caveat at the Probate Registry, which prevents probate being granted which therefore prevents the executor from administering the estate until your challenge to the Will has been dealt with. If probate has already been granted, a caveat will not help, and you will need to take urgent legal advice.
If the validity of a Will is successfully challenged, the testator’s previous Will will be the one which is administered. If there is no earlier Will, their estate will be distributed in accordance with the Intestacy Rules. It is therefore important that the person making the challenge checks at an early stage whether they would benefit from the most recent valid version of the person’s Will, or the intestacy rules, before deciding whether or not to bring a legal challenge.
For, rectification claims, 1975 Act claims and Promissory Estoppel claims, a successful claim will not necessarily invalidate the Will, but will instead result in the Court effectively varying its terms to make an award for the person making the claim.
If you are considering challenging a Will or bringing a claim against an estate, you should seek legal advice as soon as possible to make sure you are not caught out by the time limits which may apply to your claim.
Contact us or fill out the contact form on this page immediately. It may be possible to bring a claim beyond the time limit if there is a reasonable explanation and the Court is satisfied that you have good grounds for contesting a Will, but it is important that you act as soon as you realise the deadline has been missed. Our specialists can advise you on your options, but the longer you wait, the less likely it is that the Court will accept your claim.
Generally, executors should remain neutral and be prepared to assist the Court when they become aware that someone is considering contesting a Will, even if the executor is not convinced that there are any reasonable grounds for contesting a Will. This is done by making documents available to the disputing parties, authorising the release of documents which can be used as evidence (the file of the Will writer, for example), and answering any questions relevant to the dispute which are asked by the disputing parties or the Court.
However, sometimes an executor will also be a beneficiary, and may be directly affected by the outcome of the challenge, or they may even have grounds for contesting a Will themselves. In that situation, it may not be possible to bring such a claim and to remain impartial – one of their duties as executor – so they should therefore immediately seek legal advice from an expert who specialises in contested Wills.
An executor who does not remain impartial risks being removed from their role and being ordered to pay significant legal costs, including the legal fees and court fees incurred by the person contesting a Will.
Contesting a Will has the potential be an expensive process, particularly if the claim gets all the way to trial, so it is important to be aware that there are potentially significant costs involved with any contentious probate claim. But the true cost depends on how complex the claim is and how quickly the dispute can be settled, and a solicitor who specialises in contesting Wills and inheritance disputes will assess your claim, advise you on the chances of it succeeding and help you keep the costs to a minimum.
Straightforward cases can usually be resolved after just a few letters between us and the other party or their solicitor, in which case the fees can vary from around £1,000 plus VAT to around £5,000 plus VAT.
If initial correspondence is not enough to settle the matter, we would advise clients to engage in mediation or some other form of alternative dispute resolution. The costs of getting to that stage is usually in the region of £7,000 to £10,000 plus VAT.
Most claims settle by this stage, but for those which do not, the next step would be to issue court proceedings in the High Court. The costs to submit the claim to the court would increase to around £15,000 – £20,000 plus VAT, possibly slightly higher if the matter is particularly complex and we need to involve a barrister to help draft the claim. If the claim reaches a trial, it is not uncommon for each party’s final costs to be over £100,000, with the majority of those costs being incurred for the trial itself.
However, most cases do not reach the stage of a claim being issued at court, and just a fraction of the claims which do get issued get to a trial. To make sure a claim does not end up as one of the very few which reaches trial, it is essential for all of the issues to be identified at an early stage and for the parties to try and settle the dispute before court proceedings are necessary. We therefore recommend seeking specialist advice from a legal advisor as early as possible, who will help you navigate this complex process quickly and efficiently.
Unless you are eligible for litigation funding or have a legal expenses insurance policy, you will be liable to pay your own legal costs involved with contesting a Will, whether you are the party with grounds for contesting, or a beneficiary who may lose out if a Will is declared invalid. Whilst the majority of cases must be funded privately by the client, a small number of cases may be eligible for a damages based agreement or a conditional fee agreement (sometimes called no win no fee agreements) which help with your own legal costs, and after the event insurance which can cover any costs a losing party is ordered to pay to another party in an unsuccessful claim, and we would be happy to discuss the steps which need to be taken to assess the suitability of your case for this support.
If court proceedings are issued, usually the losing party is ordered to pay the winning party’s costs, meaning if you win the claim you can expect to be reimbursed for most of your legal expenses by your opponent. Executors who remain neutral and do not take sides can expect to be allowed to recover their costs from the estate.
It is important to get legal advice from a solicitor with experience dealing with contested Wills in at an early stage to try and keep the costs to a minimum and to reduce the risk of being required to pay the opposing party’s costs.
A valid Will tells your executors how your assets should be distributed after you die. If you die without a valid Will, your assets will be distributed under the Intestacy Rules, which puts the people in your life into categories and distributes your assets to then in order of priority. Visit our guide to the Intestacy Rules for full details of how they could affect you and your family.
If you are considering contesting a Will, or a Will you are connected to is under challenge, contact one of our experts for a free, no-obligation consultation and let us explain how we can help you. Please contact us on 02920 829 100, visit our contact page, or fill out the enquiry form on this page.
Our solicitors are ranked in the Legal 500, and hold industry leading accreditations including with the Association of Contentious Trusts and Probate Specialists (ACTAPS). We understand that being involved in a contested will can be a challenging and emotional time, especially as it often involves the death of a loved-one. We take an empathetic and compassionate approach to help ease the burden on you and your family in these difficult circumstances.
Our offices are at 9 Cathedral Road, Pontcanna, Cardiff, CF11 9HA, if you would like to visit us in person. We can also meet with you remotely via Teams or Zoom if you cannot get to us for any reason.
To speak to one of our experts today, please contact us on 02920 829 100 or by using our Contact Us form for a free initial chat to see how we can help.
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