A will is a very important document, often with far-reaching consequences. If it is unfair, or contains mistakes, it can be incredibly hard on the people left behind. But contesting a will can also be difficult: only in certain circumstances can a will be successfully overturned.

Here, we’ll cover:

 

Who can contest a will in the UK? 

Can you contest a will? Two of the most common reasons to contest a will are if:

  • The will itself isn’t valid
  • The person who made the will failed to make ‘reasonable financial provision’ for someone

Anyone can question the validity of a will. We’ll explain the typical grounds on which courts find wills invalid below. But if you want to claim that the will didn’t make reasonable financial provision for you, you’d normally have to be:

  • A spouse or civil partner of the person who has died
  • A former spouse or civil partner who has not remarried/re-partnered
  • A romantic partner who lived with them for at least two years
  • A child of the person who has died
  • Someone they treated as their child (e.g. stepchild)
  • Someone who relied on financial support from the person who has died

Other people who may consider contesting a will in the UK include:

  • Someone who was promised something that was not included in the will
  • A close blood relative
  • A creditor (someone the estate owes money to)
  • Someone who was named a beneficiary in an earlier will

 

Can an executor try contesting a will?

It’s possible for the executor of a will to challenge it, but they will likely have to resign as executor, because this counts as a conflict of interest. If they are also a beneficiary, then they will have to contest the will before probate is granted.

 

On what grounds can you contest a will?

The most common reasons for disputing a will are:

 

Lack of testamentary capacity

For a will to be valid, the person who made it needs to have been in their right mind at that time. We call this having ‘testamentary capacity’.

Courts use certain criteria to assess testamentary capacity. At the time of making the will, the person making it needs to:

  • Know what it means to make a will, and what will happen as a consequence of it
  • Understand what it is they’re passing on – what their estate is made up of
  • Know that there are people who might reasonably expect to inherit something from them, and who those people are (spouse, children, etc.)
  • Not be suffering from a mental illness that might change what they’d put in their will (e.g. paranoid delusions)

 

Lack of knowledge and approval 

For a will to be valid, the person making it needs to understand what is in the will and approve of its contents. If they had testamentary capacity, usually that’s enough to prove this – except if there are suspicious circumstances.

For example, a beneficiary of the will could have been heavily involved in putting the will together. With wills containing legal language that can be hard to follow, it could be argued that the person signing this dubious will might not have really understood what it would do.

If you can raise enough suspicion when challenging the will, it’ll be up to the person defending it to prove that knowledge and approval were there.

 

Incorrect execution of the will

After a will is drawn up, it still needs to be signed. This is sometimes called ‘executing’ the will. Sometimes, mistakes are made during this process, leaving the will open to contestation.

For the execution to be valid, the will needs to be in writing. It needs to be signed by the person making it in front of two witnesses, who need to then sign in front of them. There are also guidelines on who can and who can’t be witnesses.

 

The will was revoked later

You can contest a will if you can prove that the person who made it later changed their mind. For example, if the person who made the will:

  • Got married later on, invalidating the will
  • Made a new will, or added a codicil
  • Made a written statement declaring that they’d like to revoke the will, and had it signed in front of witnesses (as with the original will)
  • Burnt, tore up or in some other way tried to destroy the will

 

Undue influence

Undue influence is when someone was coerced, forced or threatened into making a will they didn’t want to make. Contesting a will on these grounds can be harder than you might think: you need to prove that coercion really took place. It’s not enough to say that the person who made the will was very vulnerable, for example.

 

A fraudulent or forged will

Fraud could mean a forged signature or false paperwork, but it could also mean that the will was based on false or misleading information – for example, if someone is written out of a will because another beneficiary lied about them. This last claim is very difficult to prove in court.

 

The will was incorrectly drafted (‘rectification and construction’)

You can also challenge a will if there some kind of clerical error while the will was being written, or if the wording is unclear. If someone is contesting a will on the grounds of negligent drafting, a mistake or ambiguous wording, it is the court’s job to make sense of what the wording should mean.

 

How to contest a will

The process of contesting a will can be long and difficult. It usually involves:

  1. Analysing your claim with a solicitor
  2. Issuing a Caveat to stop the executor from applying for probate
  3. Trying to reach an agreement out of court
  4. Beginning court proceedings, if necessary

It is possible to challenge a will without hiring a solicitor, but it’s much harder. A solicitor will be able to gather up and issue any legal paperwork, negotiate and mediate, and reduce the time it takes for a court to process a case.

Simply put, you’re more likely to win if you have a solicitor on your side – and if you lose, you may be liable for the other party’s legal fees.

 

How long do you have to contest a will?

The time limit to contest a will depends on your grounds for doing so.

  • Anyone disputing a will based on a lack of ‘reasonable financial provision’ (under the Inheritance Act) has six months after probate has been granted to do so
  •  A beneficiary making a claim against the estate has 12 years from the date of the testator’s death
  • There is no legal time limit for challenging a will on the grounds of fraud.

Generally speaking, it’s best to look for legal advice as quickly as possible. After probate has been granted, there is little anyone can do to stop the executor carrying out the terms of the will as they are written, and contesting a will after the estate is distributed is a lot more complicated.

 

What is the cost of contesting a will?

When it comes to challenging a will, no two cases are exactly alike. A high-profile case could cost hundreds of thousands of pounds, while a more average case might cost tens of thousands. Legal Aid is not available for this type of case, though your home or car insurance policy (if you have one) might include a certain amount of legal cover.

Since what you’re paying for is a solicitor’s time, the real question here is “how long does it take to contest a will?” If the challenge is disputed, it will likely take months to resolve – and if you go to court it could take over a year. It’s always cheapest (and less distressing) to resolve out of court if you can.

 

What to do if a will is contested

If you’re the executor of a will that’s being contested, the first thing you should do is seek legal advice. A solicitor will be able to help you obtain key information, such as whether the person challenging the will has the legal right to do so.

You should also get a complete account of what is in the estate and everything relating to any joint bank accounts. The dispute might come from someone not understanding whether a particular asset was part of the estate, or some disagreement over who contributed more to a joint bank account.

 

Thinking of contesting a will?

Contesting a will is a difficult and painful process for everyone involved. If you find yourself in this kind of legal dispute, make sure you have all the professional help you can get, and try to move as quickly as you can.

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