October 18, 2021

A will lays out the last wishes of an individual, including how an estate is to be divided up between the recipients. From property to assets, family heirlooms to token payments to friends or loved ones, wills can be contentious, causing family disputes that go on for years. If an individual challenges a will, the whole probate process can come to a grinding halt. But who can challenge a will? And why?

Who has the right to challenge a will?

As a rule, anyone who is a beneficiary of a will, or who was likely to have benefited from a will and hasn’t can contest its contents. The most common challenges come from:

  • Blood relatives or spouses
  • Someone who financially depended on the deceased and has been left out or has not been adequately provided for
  • An individual named in an earlier copy of a will but who has been omitted from an updated will
  • Individuals owed money by the deceased
  • An individual who may have been promised an inheritance by the deceased, but who has not been included in the will.

What are the grounds for challenging a will?

There are very specific grounds for challenging a will – you can’t just challenge it because you don’t agree with the contents or think that it isn’t fair unless you can prove conclusively that the individual writing the will was coerced or unduly influenced. The specific grounds for contesting a will are:

  • Lack of testamentary capacity – this means that the person contesting the will believes that the individual was not ‘of sound mind’ when they wrote or instructed a solicitor to write the will.
  • Lack of knowledge and approval – in this instance, the person contesting the will believes that the individual was not fully aware of the contents or did not knowingly approve them before signing the document.
  • Undue influence – one of the most common reasons for contesting a will is that it’s believed that the individual came under undue influence or pressure by other parties when they wrote their will.
  • Fraud or forgery – a very serious matter – this potentially means that the will was forged by someone other than the deceased or has been intentionally altered to benefit an individual. If fraud or forgery is suspected then it is a criminal matter and should be investigated by the police.
  • Rectification – often cited where wills have caveats or changes made to them at a later date, it means that the document was incorrectly prepared or there is a clerical error that has a direct effect on the intentions of the deceased.
  • Lack of valid execution – the will does not meet the exact requirements as stated in the Wills Act 1837 and is therefore invalid.

If a partner, spouse or child of the deceased feels that inadequate provision has been made for dependents  then they may also contest the contents of the will under The Inheritance (Provision for Family & Dependents) Act 1975, as long as the claim is made within six months of the grant of probate.

What happens when you challenge a will?

If a challenge is legitimate, then it needs to be made within a certain timeframe so it’s important to act quickly if you want to challenge the contents of a will. The timeframe really depends on the type of claim being made, but generally, a beneficiary has up to 12 years from the date of death to contest a will. If there is suspicion of fraud or forgery, then there is no time limit, especially if a police investigation is launched.

You’ll need to raise a claim as quickly as possible, and once a solicitor has validated that claim then you’ll need to lodge a caveat to the Probate Registry office. This effectively puts a stop to probate, meaning that nobody can get any of the deceased’s money or property until the claim has been dealt with. The caveat lasts for six months, but it can be renewed.

The dispute may be resolved without the need to go to court, but if it cannot be sorted out through dispute resolution then a formal court claim needs to be submitted.

No matter what route a dispute or challenge takes, it will require the expertise of an experienced contentious probate solicitor to ensure the claim is taken seriously. Contesting a will is incredibly complex, and can be costly, too. So it’s essential to evaluate whether or not a challenge is appropriate in the first place.

If you’re considering contesting a will, get expert advice from a member of our expert team today.

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