How to contest a will: the process

Disputes regarding wills and estates are increasingly common. This is largely due to more complex family arrangements (i.e. second or later marriages, stepchildren, adopted children, etc) and increases in house prices. This means that there is more “money in the pot” to fight over.

If you’ve been either left out of a will or don’t stand to receive as much as you expected to, what can you do?

Generally speaking, there are two main ways to take action. That is either to:

1. challenge the validity of a will, or
2. claim that you are not reasonably provided for under the terms of a will.

What are the initial steps when contesting a will?

Contact a solicitor

The first step to take is to contact a solicitor to obtain some expert legal advice. Whilst you can contest a will without a solicitor, this is a complex area of law and the costs incurred can be substantial. It is vital that you understand your legal rights and position at an early stage.

Read more: What are the costs of contesting a will?

Think about time limits

Next, you need to think about time limits and what steps you can take to ensure that they are complied with.

Challenging the validity of a will

If you are challenging the validity of a will, there is no fixed or specific time limit to worry about. However, some will point to a long-stop deadline of 12 years following the date of death.

What you want to avoid, though, is the estate being dealt with in accordance with the terms of a will that you think is invalid. Also, if the money is paid out to beneficiaries, then it will be far harder to reverse that if you are successful with your challenge. Therefore, you will want to act sooner rather than later and may want to consider entering a “caveat” against the estate.

Claiming that you are not reasonably provided for under the terms of a will

If you are claiming that you are not reasonably provided for under the terms of a will, then there is a time limit of 6 months from the date a grant of representation is issued.

As it is not usually appropriate to lodge a “caveat” against the estate in these circumstances, it is important to ensure that you know if a grant has been issued and, if so, when as that will then determine when the deadline is. Alternatively, a “standing search” can be entered against the estate.

It is possible to bring a claim like this outside of the 6-month window, but only in limited circumstances.

Investigate to see if you have a claim that can be pursued

Once you’ve considered the initial steps, your attention can then turn to investigating the matter and seeing if you have a meritable claim that can be pursued.

Validity challenge

First, if you can successfully challenge the validity of a will, then that will would be set aside and the estate will then be dealt with either in accordance with an earlier will (if one was made) or the rules of intestacy (default rules which dictate who benefits).

It is important to find out if there is an earlier will as that may determine if there is any point in you challenging the will in question.

Second, the usual grounds for challenging the validity of a will are that:

1. it doesn’t comply with the formality requirements,
2. the person making the will lacked the necessary capacity,
3. the person making the will did not have the required knowledge of or did not properly approve of the terms of the will, and/or
4. the person making the will was coerced into making a will they otherwise wouldn’t have made.

On the basis of the above, some standard steps that are taken when investigating a potential challenge to the validity of a will are:

• obtain a copy of the files and papers of any professional (i.e. the solicitor or will writer) who was involved in preparing the will in question,
• obtain the medical records of the deceased,
• contact the deceased’s GP or doctor, and/or
• obtain evidence from you and from any other relevant people (i.e. friends, family members, work colleagues, neighbours, carers, nurses, accountants etc).

Reasonable provision claim

The standard steps taken when investigating a potential claim such as this are:

1. obtain details of your financial needs and resources, including details of your income, your outgoings, your debts, your assets, and any particular future anticipated needs, and/or
2. obtain evidence from you and from any other relevant people (i.e. friends, family members, work colleagues, neighbours, carers, nurses, accountants etc).

Pursuing the claim further

Once you’ve investigated your claim and decided that you wish to pursue it further, then the details of the same ought to be set out to the other side in a formal letter known as a “letter of claim”, enclosing the evidence relied upon.

The other side is then usually afforded a period of 21 days to respond with a “letter of response”.

Read more: Can I defend a will challenge?

After those have been exchanged, the parties are encouraged to either try to narrow the issues in dispute or to engage in alternative dispute resolution (“ADR”), which essentially means trying to resolve the dispute in a way other than going to court.

If that is not successful, then court proceedings will need to be commenced. This process can take between 6-18 months or longer before reaching a trial, where a judge will decide if the claim is successful or not.

We are here for you

If you wish to contest a will, you have been notified of someone wanting to contest a will that you are either dealing with or benefit from, then please contact our Contested Wills, Trusts and Estates Team on 01823 625841.

We handle a variety of disputes and issues surrounding wills and estates. Further, we are able to offer high quality, cost-effective legal advice on such matters, with flexible funding arrangements such as Conditional Fee Agreements (i.e. No-Win, No-Fee arrangements) also being available.