Can I contest a Will?
An Invalid Will: You can contest a Will on the basis that it is invalid by relying on one or more of the following grounds:
- The Will is forged/fraudulent
- The Will has not been correctly executed
- The person that made the Will (the testator) lacked the necessary mental capacity
- The testator lacked knowledge or approval of the contents of their Will
- The testator was subject to undue influence
A Valid Will: If the Will is valid but you think that you have not been sufficiently provided for (if at all) you could consider making a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The Act enables certain categories of people to makes a claim provided that they are dependent on the deceased and that the deceased did not make adequate provision for them in their Will. Ask us for further details.
You can also contest a Will if you feel you have been excluded as a beneficiary by the testator on the basis of an unfounded grievance they hold against you.
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.
How do I contest a Will?
If you believe you have a valid inheritance dispute and want to contest probate it is important that you instruct a solicitor as soon as possible.
Alternative Dispute Resolution (ADR), particularly mediation, should always be considered in the first instance.
If the dispute cannot be resolved by ADR, your solicitor will need to issue a claim form to Court supported by a pleaded case, following which your opponent will serve a defence. The Court will then lay down a directions timetable to trial, which will require each party to disclose documents and exchange witness evidence.
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 contesting probate, 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.