Disputes concerning and challenging a will’s validity fall under ‘contentious probate’. Unfortunately, when someone passes, not everyone is happy with, or believes in, the validity of what is outlined within their will, resulting in conflict between parties.
Challenging the validity of a will is becoming increasingly common. People are unable to accept terms that they believe to be unfair or drafted under undue influence.
At Brown Turner Ross, we have expertise in both probate and dispute resolution, so we are not unfamiliar with the requirements of a valid will and the process of challenging the validity of a will.
What Does it Mean to Challenge a Will?
Contesting a will legally challenges the validity of the provisions of the will or the distribution of the estate. Challenging the validity of a will occurs when it is suspected that the will does not accurately reflect the deceased’s wishes or fairly provide for the dependents of the will.
The success of the challenge depends on its nature and the evidence provided to support it. If you intend to challenge the validity of a will, you must have the necessary evidence to do so.
Grounds for Challenging a Will
If you are considering challenging a will but are unsure whether you have grounds to do so, here are some relevant grounds for challenging a will.
Questions about Testamentary Capacity
Testamentary capacity is the legal term that defines the mental capacity required to change or create a will. As outlined, a person with a testamentary capacity should understand the nature of what they are putting in their will, as well as the consequences of what they have stated.
It is not irregular for a family member or beneficiary to argue that the writer of the will was not of sound mind when they wrote the will and, therefore, lacked testamentary capacity.
Those challenging the will have the responsibility of proving that the person who made the will didn’t understand how the assets would be distributed or was suffering from a mental illness that affected their ability to make decisions about their estate.
Undue Influence
A will written under undue influence means that the person who wrote the will has been coerced or pressured into making a will that does not reflect their true wishes. If a will is discovered to have been written under undue influence, it will be rendered invalid and unusable to distribute the person’s estate.
A prevalent and concerning instance of unethical behaviour involves a caregiver altering an elderly individual’s will for their own financial gain.
Fraud or Forgery
If a will is found to be fraudulent or forged, it will become invalid. This means that if the deceased has written a previous will, that will then be used to distribute their estate.
Intestacy will be used when no earlier will can be found. Intestacy is a set of legal rules that determine who inherits the deceased’s assets without the presence of a legally valid will.
The rules of intestacy may differ depending on whether or not the deceased was married or in a civil partnership when they died and which relatives they have that are still alive.
Failure to Meet Legal Formalities
When signing a will, certain legal formalities must be met for the will to be considered valid. When writing a will, a person must be of sound mind, and their will must be in writing. When signing their will, two witnesses who are both over eighteen must be present, and these two witnesses should sign the will.
If it can be proven that the will failed to meet legal formalities, it will be considered invalid.
Revocation of a Will
Revocation of a will is when it is legally cancelled, making it null and void. If it can be proven that a will has been revoked and the testator has not created a new will, they will be considered intestate, which means that the rules of intestacy will be instated.
The possibility of challenging a will only highlights the importance of ensuring that the conditions of your will are clear and written with the help of expert solicitors who will ensure that your needs are met.
Who Can Challenge a Will?
Contesting a will is not something that should be considered without good reason. However, there are instances where contesting a will is the right thing to do.
There are some rules for contesting a will that should be considered before you make any sort of claim. For example, if you would like to challenge the will for failing to make a reasonable financial provision, you’ll need to be a financial dependent of the deceased.
It is also important to note that if a court decides that a will is, in fact, invalid, the distribution of assets is up to the discretion of the court. However, you can challenge a will if you fall under the following categories.
Family Members
Family members can challenge a will if they believe that the deceased will did not meet the requirements of a valid will. There are a lot of reasons why a family member might contest a will, including:
- They believe the will was drafted with undue influence.
- They suspect fraud or forgery.
- Insufficient provision for dependants.
- A believed lack of testamentary capacity.
If you are an immediate family member and you do not believe that you were adequately provided for, we would suggest that you seek expert legal advice, as an experienced contentious probate specialist will be able to accurately review your claims before you incur further legal costs by taking the claim to court.
Beneficiaries Named in the Will
If an individual has been explicitly mentioned in the will, they may have grounds for contesting it if they believe that the terms of the will are invalid or do not accurately reflect the deceased’s intentions.
Every case is different, and there are instances in which the deceased may have had conversations and made promises for a beneficiary to have a larger share of their assets, but this must be proven.
Beneficiaries Under a Previous Will
If there is proof that the deceased created an earlier will and individuals were named as beneficiaries in a past will but not in a more up-to-date will, they may have the right to challenge it. They may suspect that the new will was improperly executed or influenced.
Contentious Probate
Now that you know how a will might be eligible for contention, let’s explore how to challenge its validity. It is important to note that this process may be costly, so pursuing your case without tangible evidence is not recommended.
Initial Consultation with a Solicitor
Before pursuing legal action, it is encouraged that you seek legal advice from an expert. Ideally, you should approach a solicitor who specialises in contentious probate, as they can give you the guidance you require.
A solicitor will review the will and the circumstances surrounding its creation. It is important to note that a solicitor will have the expertise to be able to accurately interpret the evidence, so whether or not they determine if the will is valid depends entirely on their interpretation of the circumstances and the evidence presented to them.
If they determine that there are valid grounds for challenging the will, they will advise on the claim’s strength and potential outcomes.
If you wish to seek advice from a solicitor, it is recommended that you act quickly, as the courts may not allow a claim if they believe it was delayed or the estate has already been distributed.
Gathering Evidence
To build a strong case that will hold up in court and communicate grounds for contesting, you must gather the necessary evidence to support your claims. If you want to build a strong case, you should consider collecting the following evidence:
Witness Statements: You should try and gather statements from people who were present when the will was created or can support your claim for undue influence.
Medical Records: If your main claim is that there was a lack of testamentary capacity, you must be able to prove that the deceased did not have the mental capacity to agree to the terms outlined in the will.
Documentary Evidence: If you have any emails, letters or previous versions of the will that enforce the notion that the current will does not accurately reflect the wishes of the deceased, it’s important for you to collect this evidence, as having physical evidence of misconduct can support your case.
Forensic Analysis: If you believe that there has been fraud or forgery involved in the creation of the will, you should have the authenticity of the signatures on the will checked for forgery, as positive signs of forgery can support your case.
Pre-action Protocol and Alternative Dispute Resolution
We always recommend resolving issues outside of court before escalating a case. This not only saves money but also improves relationships between all involved parties.
Before you can look at alternative dispute resolution, you need to send a pre-action letter to the involved parties. This should outline why you wish to challenge the will and request a response from the executor of the will or any other involved parties.
Once you have done that, you can suggest to the other involved parties that they try alternative dispute resolution. We recommend that you try mediation. Mediation can often make it easier to maintain relationships and ensure that everyone engages respectfully with a third-party mediator.
Filing a Claim in Court
If mediation does not allow you to come to a solution that works for all involved parties, the next step would be filing a claim in the appropriate court. During this part of the process, you must complete and submit court forms detailing the grounds for challenging the will.
You are then required to serve the claim on all involved parties, including any executors and beneficiaries of the will. By serving this claim, you give yourself and the other parties the relevant time required to gather additional evidence and supporting documentation.
If you require assistance serving this claim, you should contact expert solicitors such as Brown Turner Ross, and we will give you the necessary assistance.
Court Proceedings
Once all necessary documents have been filed and all parties have been notified, the next step is to go to court. During the case, all sides will present any relevant evidence and arguments they may have.
At the start of the hearing, all involved parties are expected to share relevant documentation with each other. Witnesses may then be called to testify about key aspects of the case, such as validating the deceased’s mental state or the circumstances of the will’s creation.
Depending on the complexity of the case, forensic experts or medical professionals may be requested to provide specialist insights, especially in cases involving accusations of fraud or forgery.
After hearing all of the provided evidence, the court will decide the will’s validity. There are several potential outcomes to expect, including:
- Declaring that the will is valid and enforceable.
- Invalidating the will entirely.
- Amending specific provisions of the will based on the court’s findings.
Following this judgement, the estate will be administered according to the court’s ruling. At this point, if one party disagrees with the court’s ruling, they may make an appeal, but there are specific grounds that allow for this.
How Much Does Contesting a Will Cost?
The cost of contesting a will can vary depending on a number of factors, such as the nature of the claim and whether the estate will contribute to the overall cost. The final bill will be determined in court.
It is impossible to give you an exact figure for the cost of contesting a will, as the costs are up to the court’s discretion and the time taken to complete the case.
Once again, though we can not give you an exact figure, you can expect the cost of contesting a will to range from £25,000 to £50,000, including legal fees and potential barrister costs. These high costs once again highlight the importance of only bringing a case forward if you have substantial evidence to back your claims.
How Long Does Contesting a Will Take?
Much like the cost of contesting a will, we cannot give exact numbers for how long it takes. Depending on whether or not the case goes to court, it can take months or even years.
Contesting a will can take an average of 12-18 months, but once again, the complexity of the case can significantly impact this number. On average, about half of the cases are settled before going to court, which only emphasises how different each one can be.
How Brown Turner Ross Can Assist You
If you intend to contest a will or are a beneficiary of a will that is being contested and requires legal support, contact our team at Brown Turner Ross. With over 100 years of experience, we have the expertise to help.