Disputing a Will comes under an area of law referred to as ‘contentious probate’. This is a specialist matter and we strongly recommend that if you do wish to contest a Will you obtain legal advice from a solicitor who specialises in will disputes
When disputing a Will, the court will assume that it is valid until proven otherwise. Therefore the burden of proof is on the applicant.
What makes a Will valid?
A Will is an intricate document, which requires careful drafting. In order for a Will to be legal the following legal requirements must be satisfied:
- The testator (the person creating the Will) must have been 18 years or over at the time of signing the Will.
- The Will must not be executed under any undue influence.
- The testator must have legal mental capacity in order to execute a Will; for example, there must be no evidence that the testator suffer from any mental illness such as dementia, when creating the Will.
- The testator must have fully understood if the meaning and consequences of their choices within the Will.
- Two people must witness the Will. These people are not normally beneficiaries.
- If a beneficiary does witness the Will then, they lose their right to receive a legacy. The rest of the Will however, remains valid.
- The testator must sign the Will in the presence of both witnesses.
- The witnesses must either see the testator sign the Will or must acknowledge his/her signature.
- The Will must be created by the testator’s own free will
What reasons are there to contest a Will?
There are many grounds on which a person or beneficiary can rely on when disputing a Will, including the following:
A beneficiary disputes their inheritance (under the Will itself or under intestacy rules in the Inheritance Act 1975).
The claim is brought on the ground the deceased’s dependants or family did not receive ‘reasonable’ financial provision from the estate.
- A professional negligence claim against any professional (e.g. a solicitor or Will writer) who negligently drafted a Will.
- Disagreements may arise between the executors of the Will.
- The beneficiaries may wish to bring a claim against a trustee or personal representative.
- The deceased did not have a sufficient mental capacity to satisfy legal requirements when he/she executed the Will.
- The Will was made by the testator under duress or undue influence.
- The Will itself is fraudulent.
- The Will was not validly made nor validly executed. Home made or DIY Wills are particularly likely to contain errors or be executed incorrectly.
- Improper alterations (not using codicils*) were made to the Will after its initial execution.
- The Will has since been revoked and is therefore no longer legally effective.
- The Will is not the last Will and Testament of the deceased i.e. another Will exists.
- The deceased’s Will cannot be found.
* A codicil is a supplement to a Will, which makes an alteration but leaves the rest of the Will intact.
Any action in disputing a Will must be brought within 6 months from the grant of probate. It is nonetheless a good idea to lodge your dispute immediately prior to the grant of probate. This means ideally any claims should be brought within 6 months from the date of death.
If you are thinking of disputing a Will, you must be aware that the time limits are quite tight. As a result, we recommend you contact a specialist solicitor immediately to obtain appropriate advice.
Disputing a Will – what should I do?
The first step is to decide the reasons for contesting a will. These reasons will then form the grounds on which your case is made. After you have established your reasons, a ‘caveat’ can then be lodged at the Probate Registry. This caveat prevents a grant of probate from occurring without a notification being made to you. If an injunction is granted against probate then it also halts any verification of beneficiaries under the Will. Therefore it is vital that a caveat is lodged before the grant of probate happens, if not it may be too late to contest the Will.
After you have lodged a ‘caveat’ the beneficiaries under the Will may counter-issue you with a ‘warning’ this applies whether you personally are beneficiary or not. This warning means that they disagree with your claim and feel that you do not have any entitlement under the Will or that they are satisfied with the validity of the Will and the divisions within it.
If ‘warning’ documentation is issued, you will need to decide whether or not to proceed with disputing a Will. You will have to consider that further action may lead to issuing legal proceedings and potentially a court case.
Thinking of disputing a will? Contact us today
Our solicitors act for clients nationwide, from Bournemouth to Sheffield, Coventry to Cardiff. For more information about will disputes, call our specialist solicitors today for FREE initial advice:
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