Dealing with the death of a family member is never going to be easy, and when it comes to the will, we all want our loved ones’ assets to be distributed faithfully and fairly. But if you have concerns about the way in which the will was produced, you may have legitimate grounds for contesting a will. In this guide, we will unpick the fact from the fiction and hopefully give you some clarity on what contesting a will in the UK involves, and whether it’s a good idea.
Yes, the short answer is that you can legally contest a will, though whether or not you succeed is by no means guaranteed. It’s worth bearing in mind that the process of contesting a will varies throughout the UK; Scots Law has different stipulations regarding wills and succession, so if you live north of the border, you may wish to get legal advice from registered solicitors through the Law Society of Scotland.
In England and Wales, there are various legal grounds for contesting a will. Some of the legal terms used for contesting a will are as follows:
This is the legal term used to describe a person’s legal and mental ability to make or alter a valid will. If the person making the will (testator) lacks testamentary capacity at the time that the will is executed, the will is invalid. The test for capacity to execute a valid will is based in case law.
Undue influence or coercion
This is where the testator could have been pressured or coerced into changing their will. Coercion is pressure that overwhelms the testator’s own wishes without completely changing their mind. What are the tell-tale signs that a will was made under undue influence or coercion? For example, the will could be homemade, with no professional advice sought, and could also include spelling mistakes, and/or language which would not have been used or understood by the testator.
Lack of knowledge and approval
This can arise when there has been a mistake made in the will, either because the testator has no knowledge of making a will, is lacking in capacity, or wasn’t challenged during the process. For example, the will writer may have made a mistake when preparing the will which was not picked up when the will was signed and witnessed.
There is no definitive answer in terms of how expensive it is to contest a will, because your eventual costs will depend on the nature of the claim, whether any costs can be borne by the estate, and whether the court finds in your favour. Moreover, the final bill will ultimately be determined by the court, so it’s by no means obvious how much you may pay to contest a will.
In terms of who pays to defend a contested will, the party challenging the will incur the costs, at least initially, but the losing party may be ordered to pay the winning party’s costs. There have been some High Court cases where the litigation costs have come out of the estate, but this is not guaranteed, so again, the cost of contesting a will depends very much on the merits of an inheritance claim.
Theoretically, anyone can challenge a will, whether that’s a sibling, or someone who doesn’t appear to benefit on first glance, but may be a residuary beneficiary. However, contesting a will is not something you should consider without good reason.
If you want to challenge a will for failing to make a reasonable financial provision, you’ll need to be a financial dependent and normally one of the following: a child, spouse, civil partner, an ex-spouse or ex-civil partner who is yet to remarry, or a cohabitating partner.
However, if a court decides that a will is invalid, remember that the estate is distributed at the discretion of the court, meaning there is no guarantee you will receive anything. The court normally distributes the estate in line with the most recent valid version of the will, so it’s likely you will only receive something if you were named in that version. It’s also worth bearing in mind that if there are no surviving family, the estate will go to the Crown.
It’s better to contest a will as early as possible in the process. Contesting a will after probate has been granted is technically possible, but can be costly and require additional legal advice.
Yes, if you ultimately succeed in proving that the will is invalid, then a will can be overturned after probate. But contesting a will at this stage is complicated, and you risk incurring expensive legal costs if the court finds in favour of the executors. Furthermore, the longer the process is delayed, the greater the chances that the deceased’s assets will already have been distributed.
You can technically contest a will after the estate has been distributed, but this may be very difficult to achieve. Again, you’re advised to challenge the will before the grant of probate has been issued. Legally, you could attempt to recover the assets from the beneficiaries, but this will be harder if the money has been spent, especially if the beneficiaries no longer have the funds to settle any court fees.
If you wish to contest a will, you would ideally enter a ‘caveat’ with the Probate Registry, which gives you 6 months to determine whether you have reasonable grounds to challenge the will, and can be extended. Bear in mind that the executors have the right to lodge a ‘warning’ to the Probate Registry; at this point, you may wish to substantiate your caveat through what’s known as an ‘appearance’, but doing so means the matter would have to be resolved by an Order of the Court, with the potential for expensive legal costs.
Only the named executors can view a will before the grant of probate has been issued. After this stage, the will becomes a public document and anyone can view the will if they apply to the Probate Registry.
If you’re not a named exectuor in the will, then strictly speaking you won’t be able to view it before probate has been granted. However, there may be avenues you can explore:
- Write to the executors of the will – If you have a legitimate claim to view the will, perhaps as a residuary beneficiary, you could send a written request to the executors.
- Apply through the courts – A solicitor could advise you on who is entitled to view the will after the death, or if you have grounds for contesting a will through the courts. Remember that the legal costs for an unsuccessful claim will be high.
- Lodge a ‘caveat’ with the Probate Registry – As we’ve covered, entering a caveat with the Probate Registry before a grant of probate has been issued is one way to challenge a will. If the executors choose not to escalate the dispute with a ‘warning’, they might let you get a copy of the will before probate.
Furthermore, if you are a residuary beneficiary you are entitled to view a copy of the estate accounts, which record all the financial transactions of the estate.
In normal circumstances, it should take around 6 months after the grant of probate has been issued for the beneficiaries to receive their inheritance. However, it is not uncommon for the beneficiaries of a will to wait longer than six months. But of course, if you’re contesting a will, there is the potential for further delays during the whole process. What’s more, some estates are more complicated than others, so the time it takes to receive an inheritance depends on other variables, like selling shares, property, or finding a missing beneficiary.
Get more advice on how to contest a will
Ultimately, if you’ve absorbed all the information here and you’re still keen to contest a will, you will need to speak to a UK-based legal professional to discuss your next steps. Every family has its fair share of dramas, but it’s always best to try and resolve disputes early in the process, and in-person if at all possible. Read more about the importance of writing a will.