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Contested Wills & Estates

Dispute Resolution for Individuals

Meet David Mallinson

Head of Department

Inheritance disputes can often arise over the validity of a Will, the effect a Will has on family and friends and in cases where no Will has been made at all.

Girlings has extensive experience of Contentious Probate acting for family members, executors and trustees in a wide variety of cases.

Such disputes can have the ability to destroy relationships within the family for a lifetime. When contesting a Will, we always seek to achieve the most effective solution quickly and fairly in order that relationships, where damaged, have the best prospect of recovery and that the expense to the estate may be kept to a minimum. Girlings can also advise on intestacy cases following a person’s death where there is no Will.

The number of people seeking to contest a Will is on the increase and there have recently been some high profile inheritance dispute cases. In addition, issues of fraud and dishonesty on the part of attorneys and sometimes executors have become a major issue in recent years.

Girlings Solicitors has a reputation for offering a professional, sympathetic and supportive service. We work with a wide range of clients that include:

  • The beneficiary/beneficiaries
  • Trustees
  • Executors/administrators of estates
  • Charities that are involved in legacy disputes.
How to contest a Will

The most common grounds for contesting a Will are listed in the following section. If you think you have a claim you must act promptly. Claims in respect of the provisions of an otherwise valid Will are time limited so early advice is essential. If the validity of the Will is being disputed, we will usually advise that a ‘caveat’ is lodged at the Probate Registry. This stops personal representatives obtaining authority (Grant of Probate) to proceed with the administration.

It is always better to instruct a lawyer who specialises in inheritance claims/Will disputes and one of our specialist probate solicitors would be happy to have an initial discussion with you.

Grounds for contesting a Will

Listed below are the most common grounds for contesting a Will.

Eligible Claimants

This can be a complex area. If a person thinks they should have been left a share of someone’s estate they can make a claim if they qualify as an eligible claimant. For example, under the Inheritance Act a claim can be made against an estate on the basis of a lack of reasonable financial provision for members of the deceased’s family or in certain cases, other dependent person / persons as well.

Lack of testamentary capacity

When a person makes a Will they must be of sound mind for it to be a valid Will. Any of the reasons below could be the starting point for a challenge based on a lack of testamentary capacity:

  • The testator was not aware that they were making a Will and the effect of that Will.
  • They did not know the nature and value of their estate.
  • They did not understand the consequences of including and excluding certain people under their Will.
  • They were suffering from a ‘disorder of mind’ which might have influenced their views.

An invalid Will - lack of valid execution:

A valid Will must meet one or more of the requirements listed below. In addition, there are strict rules about who can witness a Will. Legally a Will is deemed to have been validly executed unless there is evidence or any doubts over any of the requirements below:

  • The Will has to be in writing and signed by the testator or signed by someone else in their presence, who has been directed to do so by the testator.
  • It must appear that the testator intended by their signature to give effect to the Will.
  • The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time.
  • Each witness must either attest and sign the Will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness.

Lack of knowledge and approval

The testator must know that they are signing a Will and approve of its contents. To contest a Will on the basis of lack of knowledge and approval it must be shown that the testator was not aware of the content of the Will or that there were suspicious circumstances. This ground can be used even if the Will appears to be validly executed and the testator had mental capacity.

Undue influence

Actual undue influence must be demonstrated to prove that a person was unduly influenced, coerced or under duress when making a Will.

Fraudulent wills and forged wills

If you believe forgery or fraud has taken place you can contest a Will.

Poorly written Wills

A construction claim may be brought if the words in a Will are unclear or ambiguous. A Will may be rectified where it fails to carry out the testator’s intentions either because of a clerical error or because of a failure on the part of the person preparing the Will to understand the testator’s instructions. When a Will is negligently drafted this is often the first port of call before making a claim for professional negligence.


Conditional Fee Agreement (CFA)

Conditional Fee Agreement (CFA)

For some matters it may be appropriate to use a Conditional Fee Agreement and we will discuss this with you.

Whatever your personal circumstances, taking the decision to contest a Will can be stressful and emotionally difficult and it is important to take legal advice as soon as possible. Our Wills, Tax & Estate Administration team can also advise you on other related matters such as grant of probate and Inheritance Tax.

For further advice on contesting a Will please contact one of our specialist contentious probate solicitors today. Girlings has offices in Canterbury, Ashford and Herne Bay.

Our Experts

David Mallinson

Head of Department
Dispute Resolution

Nicola Webster

Senior Associate Solicitor
Dispute Resolution

Lee Quickenden

Associate (FCILEx)
Dispute Resolution

Rebecca Page

Debt Recovery Manager
Debt Recovery

Sophia Wright

Paralegal
Wills, Tax & Estate Administration; Dispute Resolution

Anna Ayling

Trainee Solicitor
Dispute Resolution

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FREQUENTLY ASKED QUESTIONS

What is a forfeiture or 'no contest' clause?

Before contesting a Will you should always check if there is a ‘no contest clause’ which states that a beneficiary will forfeit their inheritance if they challenge the Will.

If you do decide to challenge a Will that contains a ‘no contest clause’, if the whole Will is found to be invalid the clause will not apply.

Is timing important and when should I bring a claim?

Timing is critical in probate disputes, and a laid back approach could have devastating consequences.

Any claim under the Inheritance (Provision for Family and Dependents) Act 1975 should normally be made within six months of the issue of the Grant of Probate.

In an inheritance dispute immediate action may be required to protect assets whilst claims are under consideration.

Will I need to go to court?

If your case goes to trial (this is rare) you will almost certainly need to go to court and it will be necessary to give verbal evidence and face your opponent.

An alternative to trial is mediation which often results in settlement.

Will I have to pay legal costs while I am contesting the Will?

While pursuing a claim, each party will be responsible for their own costs and we can discuss funding options with you. The Judge will decide at the end of the case which party is liable for the litigation costs. Usually, but not always, the losing party is liable, although on many occasions costs will be paid from the estate.

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