April 18, 2019

Contesting a Will

The purpose of a Will is to clearly specify which assets should be left to which person upon your death and is designed to ensure that all parties follow your wishes. However, even with the best intentions a Will dispute may arise and specialist legal advice may be sought in order to provide a quick resolution for all parties. In this article, contentious probate solicitors Holmes & Hills discuss some of the common reasons a Will may be disputed and the actions that can be taken to rectify this.

Common reasons for contesting a Will

A Will can be contested for a number of reasons and ultimately the nature of the dispute may impact the actions that are taken in order to address the dispute. Some common reasons that may lead to a Will dispute are:

  • Fraudulent or forged Wills                                            
  • Lack of testamentary capacity – where it is suspected that the person who made the Will may not have been of sound mind at the time
  • Undue influence – Where a particular party may have coerced the person into including them in the Will or leave someone out of the Will

It can be very difficult for loved ones of the deceased to come to terms with the Will if it is significantly different to what they were expecting i.e. if they have been unexpectedly excluded from the Will, or if assets are left to a different party. If this occurs, it is prudent to seek specialist legal advice in order to understand what your rights are. In order to challenge a Will, there needs to be grounds for the claim.

As a general rule, it is important to contest a Will sooner rather than later as it is far more time consuming to challenge once probate has already been obtained and the estate administered. It is also more likely for the Court to reject a claim unless a specific reason can be justified for the time delay.

Certain categories of people can bring a claim against the Will but it is most likely to be a surviving partner, children or any other dependents who may have reasonably expected assets to be left to them within the Will.

The actions taken to contest a Will may depend on the individual circumstances. However, often as a first step it may be possible to apply for a caveat to be entered against the estate at the Probate Registry. This then stops the assets of the estate from being distributed until the dispute is resolved. A caveat will apply for a 6-month period. However it is possible to renew this should the dispute not have been resolved within this time frame.

If the claim cannot be resolved it may be possible to make a formal claim through the courts. It is then for the claimant to convince the Court that the decisions made in the Will are incorrect. However, if the claimant has been able to provide strong evidence relating to the lack of testamentary capacity i.e. they can prove that the person making the Will may not have been in sound mind at that time, it then falls for the executors of the Will to prove otherwise.

The court will then make a decision based on all the facts presented. If they rule that the Will is invalid, the estate would then be allocated according to the rules of intestacy, as if the Will never existed in the first place, or in accordance with any previous Will.

Contesting a Will can be a highly emotive time and therefore if you are considering bringing a claim because you feel you have been incorrectly left out of a Will, or that the Will does not represent the deceased wishes, it is important to seek expert legal advice right from the outset. For more information please contact Holmes & Hills’ contentious probate team on 01376 320456 (Braintree) or 01787 275275 (Sudbury).

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