If you think you have valid grounds to contest a will, but you are concerned that the grant of probate has already been obtained, then you must act quickly. The first step is to notify the executors of the will of your potential claim to seek their agreement to refrain from distributing any assets pending the resolution of your claim.
It is possible to contest a will after probate has been granted, but doing so can be more problematic if any of the assets have already been distributed.
It is essential to take swift action and seek legal advice if you believe you have a valid case for contesting a will. By proactively engaging with the executors of the will and considering your legal options at the earliest opportunity, you can help protect your interests and increase the likelihood of a favourable outcome in a will dispute.
The fundamental principles upon which you can challenge the validity of a will are the same regardless of whether the grant of probate has been obtained by the executors or not. To challenge a will, you must first have the requisite “legal standing” to challenge a will, i.e you must have a direct interest in the outcome, whether you are a beneficiary of a previous will, or if there is no earlier will, you must be a beneficiary under the laws of intestacy. This is because the terms of any previous will or (if there is no prior will) the laws of intestacy apply if you successfully invalidate the will in question.
There are five main ways in which to challenge the validity of a will:
- Lack of formality – the will must be made in satisfaction with Section 9 of the Wills Act. If it hasn’t been signed and witnessed properly, then it will be invalid.
- Lack of capacity – The person making the will must have the requisite mental capacity to execute the will. If, for example, they had dementia when the will was executed, then the will could be invalidated.
- Knowledge and approval – If the person making the will didn't fully understand and approve the terms of the will, then the will may be invalidated.
- Undue influence – The person making the will must have made the will of their own free will, and if a third party has forced them to create a will contrary to their own wishes, then the will may be invalidated.
- Fraudulent calumny – a will can be invalidated if a third party has told lies about the character of another and the person making the will excludes that party in reliance upon those lies.
How do I contest a will after probate has been granted?
The way that you may seek to invalidate a will depends upon the ground of challenge. Typically, the process will involve an initial evidence gathering exercise, which would usually involve:
- Obtaining a copy of the will file.
- Obtaining copies of medical records.
- Collecting witness accounts from those who knew the deceased and/or who witnessed the will.
It is important to use all the investigative tools available to gather the relevant evidence to support your claim. Once you have gathered the necessary evidence in support of your will challenge, you would need to issue a claim at court seeking an order for the revocation of the erroneous grant of probate on the basis that the will in question was invalid.
Revocation of the Grant of Probate
By reason of the grant already being issued in the estate, it would be necessary to issue an application at court seeking the revocation of the existing grant of probate on the basis that the will was invalid. If approved by the Court, the application would see to the invalidation (or revocation) of the grant of probate and would allow the correct personal representatives to obtain the appropriate form of probate.
When do I need to bring my challenge?
Although there is no limitation on your ability to challenge a will via these types of claims, the outcome is more likely to be favourable the sooner you act. This is particularly important if a Grant of Probate has been issued as, typically, simple estates are administered and distributed within 12 to 18 months of the date of death, so it is highly recommended to obtain legal advice at the earliest opportunity.
How long will it take?
The costs and duration of a will dispute will vary (depending upon the conduct of the people involved and the extent of court involvement required) but it can typically take 12 to 18 months to obtain a final order on a case.
Remember, every case is unique, and seeking professional legal guidance is recommended to understand the specific legal requirements and potential implications of contesting a will after probate has been granted.
FAQs
Before embarking on contesting a will in the UK, it's crucial to thoroughly assess whether the potential benefits of challenging the will outweigh the costs, risks, and time involved in bringing a legal challenge. Our experienced contentious probate team is well-equipped to guide you through this analysis, ensuring you make an informed decision that aligns with your best interests.
When contesting a will, court involvement may not always be inevitable. Depending on the circumstances, parties can reach an out-of-court agreement to resolve the dispute. In some cases, court approval may be required for the settlement. Our experienced legal team can explore all available options, including negotiation and alternative dispute resolution, to avoid the need for court intervention.
Challenging a will in the UK can be complex. To successfully contest a will, claimants must provide sufficient evidence to convince a judge on the balance of probability that the will is invalid. This requires thorough investigations and the gathering of compelling evidence. Our experienced legal team can guide you through this process, ensuring the necessary evidence supports your claim.
While it is impossible to entirely prevent someone from contesting your will, you can take steps to minimise the risk of such challenges.
One effective measure is to have your will prepared by experienced solicitors. This ensures the will is drafted in compliance with the Wills Act, properly considering the testator's capacity and understanding.
Solicitors can also provide expert guidance on best practices for signing the will. By entrusting the drafting and execution of your will to qualified professionals, you can reduce the likelihood of a successful challenge.
There is no specific time limitation for challenging a will in the UK. However, it is advisable to act promptly, as the sooner you contest a will, the more likely it is to be a reasonable pursuit. This is because estates are often administered within 12 to 18 months of death, and assets may be distributed during this time.
It is crucial to make your case known before the distribution of assets to ensure that your challenge can be appropriately considered.
There is, however, a time limit to bring an application for financial provision under the Inheritance Act, being six months from the date of the Grant of Probate or Letters of Administration being obtained by the Personal Representatives.
A grant of probate can be temporarily halted by placing a caveat on the estate, which can be quickly done online. The executors can challenge the caveat by filing a "warning" against it. The caveat will be removed if no response is filed to the warning. However, if you wish to make the caveat permanent, you can enter an Appearance to a Warning, after which a court order can only remove it. Our lawyers can guide you through utilising a caveat to halt probate and protect your interests temporarily.
Yes, an executor can in theory contest a will if there is a valid reason. However, this would mean that they can no longer be executors and would, therefore, need to renounce their appointment or be removed as executor.
The time it takes to contest a will is dependent on many factors. On average, it will take around six to nine months. However, in some cases, it can take years. The factors that change the time include the type of claim and the case's complexity.
You are still legally allowed to contest a will after the grant of probate has been issued and the estate has been distributed. However, achieving a positive outcome is far more difficult. It is advisable to claim before probate is granted.
A will is a private document which a person can change at any point in their lifetime. It is up to each individual who they allow to view their will. Once a person has died, the executors are the only ones who can see the will until probate is granted. When probate is granted, the will becomes a public document, and anyone can apply to see a copy. There are a few exceptions to this rule. If the person is a public figure, for example, a celebrity of royalty, a judge may allow a will to remain sealed.
No, it's not possible to contest a will before a person dies because they could well change their will before their death.
There's been a rise in people adding a "no contest" clause (also known as "forfeiture" clauses or "in terrorem" clauses) to their will. This effectively means that if a beneficiary chooses to contest the will and loses, they forfeit anything left to them in the will. In the case of Sim v Pimlott, the no contest clause was upheld, so they can be a useful tool if correctly, documented and executed.
