Deciding to contest a Will can be a difficult decision during a time of grief and emotion; however, if you believe the Will did not adequately provide for you, or you have a formal objection against the validity of a Will, you may deem this necessary.
There are five main grounds for Contesting a Will:
- Mental Incapacity
- Lack of Understanding
- Undue Influence
- Fraudulent Circumstances
To read about these grounds in more detail, read our article.
Who can Contest a Will?
Generally, anyone who has beneficial interest, or a potential beneficial interest, can challenge a Will, however you must prove there is good reason. Under UK law, there is the principle that an individual is entitled to dispose of their estate as they see fit. Therefore, for a court to make orders that go against the original wishes (or the rules of intestacy where there is no will) various factors will need to be considered. In most cases, those who contest a will fall into the following categories:
- Family members
- Someone who was financially dependent on the deceased
- If you are a beneficiary under the Will or an earlier Will
- Someone who is owed money by the deceased
- Someone who was promised something by the deceased
If you fit into any of these categories, you may be able to contest the Will.
Family and dependants can also contest a Will is under The Inheritance Act 1975 . To make a claim under the Act, you must fit into one of the following categories:
- A spouse of the deceased.
- A former spouse of the deceased. This only applies if you have not remarried.
- A partner who lived with the deceased for at least two years immediately before death.
- A child of the deceased.
- A person who was treated as a child by the deceased and family of the deceased.
- Someone who was financially supported by the deceased.
Applicants falling under these categories must demonstrate that the provision made (or if there was no provision at all) is not reasonable. How the court considers what is ‘reasonably necessary’ or how they will make an award can involve various complex factors. If you think you may have a claim against an estate, early advice and action is important.
Another way to contest the Will is to contest the validity. This is in accordance with the previously mentioned grounds for Contesting a Will such as fraud or mental incapacity
The Contesting Process.
Mediation, or other forms of dispute resolution, which are types of voluntary negotiation, is used to settle most Will disputes without involving the courts. Not only is this a cheaper, and quicker form of resolution, but it is often the better option to prevent ongoing conflict between the parties. Most courts will also expect parties to have tried mediation before making a claim.
Unfortunately, mediation is not always successful and taking the case to court is the only viable option. Although this method will lead to a definitive outcome, it often causes issues with the involved parties, primarily due to the nature of the case whereby they would have to argue the case of their relationship with the deceased – something that is often distressing and emotional.
Is there a Time Limit to Challenge a Will?
In most cases there are strict time limits to challenge a Will or make a claim against an estate. The nature of the claim will determine the precise period, (and you should always seek appropriate legal advice as quickly as possible), but typically the most common types of claims are:
- Claims for reasonable financial provision: 6 months from the issue of the grant of probate
- Beneficiary disputing a will: 12 years from date of death however, if the claim is financial, the 6-month rule above would apply.
- Fraud – No time limit
Read more about Grants of Probate in this article. These are just some examples, and speaking with a Solicitor first will enable you to assess the strength of your claim and the most appropriate solution for your situation.
The Step-by-Step Will Contesting Process.
- Instruct a Solicitor to outline the reason(s) as to why you wish to contest the Will.
- If a Grant of Probate has not been obtained, a Caveat can be entered to prevent it.
- All other relevant documentation should then be obtained or blocked accordingly.
- A formal Letter of Claim is then written to the opposing party (most likely the deceased executor).
- There will then be an invitation to mediation.
- If mediation is unsuccessful, court proceedings may commence.
Sittingbourne Probate Lawyers
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