Contesting a Will

Lack of testamentary capacity

The legal term "testamentary capacity" describes a person's mental ability to make or amend a valid will. The person making a will is called a testator. The will is invalid if the testator lacks testamentary capacity when making or amending the will. 

In order for someone to pass the mental ability requirements, they must be able to

• understand the nature of the will they are making and its effect
• understand the extent of the property of which they are disposing
• be able to comprehend and appreciate the claims to which they ought to have regard
• not be suffering from any insane delusion

This basis of challenge is often relevant in relation to elderly testators suffering from cognitive impairment. Whilst a diagnosis of dementia, for example, does not of itself mean the testator lacked the required testamentary capacity (the four criteria above being the applicable legal test) if the effect of that dementia is such that the testator did not, for example, understand how many children they had, or whether all of those children were still living that might be a good evidential indicator of inadequate testamentary capacity.

This is one of the most frequent grounds for challenging wills, and if support can be found within the testator’s medical records, together with statements from those close to the testator at the time the will was created and inadequate checks from those who prepared the will (if the will was professionally drafted), then that may start to form the evidential basis of a will challenge.

Undue influence

Undue influence is when a person has used influence, power, force, or coercion to make or alter a will that directly benefits them. 

If undue influence is the ground for contesting a will, showing that a person was coerced rather than persuaded is essential. However, the courts have recognised coercion in many forms. 

If, for example, a vulnerable adult who is mainly housebound and therefore reliant upon one of her two sons to help with daily tasks were to change her will so that, rather than sharing her estate equally, she leaves her entire estate to the son who takes care of her, that could be a valid will assuming she did so without undue influence from her son.

However, if her son asked her repeatedly to change her will and then threatened to withdraw support unless she did, such conduct, if proven, could amount to undue influence.

Lack of knowledge and approval

For a will to be valid, the person making it must understand its content and the impact of their wishes before they can approve it. 

If a solicitor drafts a will, it is usually read aloud to ensure it is understood before signing, but this is only sometimes the case. If a will is drafted in suspicious circumstances, it may be that the contents do not match the wishes of the deceased or that they did not understand the effect of the will.

If instructions to a will were given by a person who then does not check through the terms and provisions of the will, that can lead to a challenge for want of knowledge and approval, as the testator must have knowledge of what is ultimately within their will and then, with that knowledge, approve of it. 

Lack of valid execution

For a will to be valid, it should be executed in compliance with the Wills Act 1837. This means specific rules need to be followed in its execution.

In summary, a will has to be in writing, signed by the person making the will or by someone in their presence under their direction, and the signature should be acknowledged in the presence of two or more witnesses at the same time. 

The will does not have to be on paper; although the majority are, it's still valid, even if it's on cloth!

However, if the will is not correctly executed, there may be grounds for contesting. 

Forgery or fraud

If the signature of the person who made the will or the entire contents or part of the will are forged, then the will is invalid. Fraud may also result from someone's lies. For example, if the person making the will is told a lie about a beneficiary and, as a result of the lie, removes them from the will, that would be fraud. This form of poisoning the mind of the testator is known as Fraudulent Calumny.

One obvious example of forgery would be creating a will without the testator's position, signing it on their behalf without their consent and then seeking to rely on that will after their death. Another example might be a will that the testator had drafted or given instructions to be drafted before their death but never signed. If anyone other than the testator were to sign that will after the testator's death, it would be vulnerable to challenge based on forgery or fraud.

Reasonable financial provision

Depending on your relationship with the deceased, you may be able to claim reasonable financial provision if you were financially dependent on or maintained by them immediately before their death.

If, for example, you were in a relationship with the deceased, lived together and were reliant upon them for financial support (e.g. a place to live, payment of bills or other financial support) but were not married to them and they then died without a will, or with a will which made little or no financial provision for you, there may be grounds to bring a claim for reasonable financial provision from the estate.

Proprietary estoppel

Whilst promises are not generally enforceable in law, if certain criteria are met, a party can apply to the court to enforce the terms of a promise made by another about property. This remedy is known as proprietary estoppel.

To bring a claim under the doctrine of proprietary estoppel, you must be able to evidence the following criteria:

• that a promise of property (or part of a property) was made to you by the deceased;
• that you have relied upon that promise;  
• that you have suffered detriment in reliance upon the promise and
• therefore, it would be wrong for the promise not to be honoured.

These situations have commonly arisen in the context of farming, for example, where a child is promised the farm in return for working on the farm with little or no pay, and the owner of the farm then reneges on that promise in life or fails to provide them with the farm in their will.

Rectification 

If a will has been incorrectly prepared due to a clerical error, it is possible to apply to the court seeking rectification of the will to the form in which it was intended. 

Rectification would not apply to circumstances whereby the will writer misunderstood the effect of the will or the terms of the testator's instruction; rather, it applies only to clerical errors. In those circumstances, the court can change the will's wording to correct the mistake.  

The process of contesting a will

If you suspect a will may be invalid, gathering as much evidence as possible to support your claims is essential. Typically, the following steps are helpful when considering a challenge to a will:

Request a copy of the will 

If a lawyer helped prepare the will, getting a copy of the will file from them is crucial. The will file usually includes notes that explain why the will was drafted a certain way, whether a capacity assessment was done, who provided the instructions for the will (such as if someone else introduced the person making the will to the lawyer), and whether the will was signed correctly. The will file is a valuable source of evidence that can be helpful in case of any challenges to the will.

Medical records request 

If you suspect that the person who made the will may have had issues with their mental capacity, it's essential to ask for a copy of their medical records. The medical records can show if there were any mental health problems like dementia at the time when the will was made and signed.

Witness testimony 

In cases where there are concerns about whether the person who made the will truly understood and approved of its contents or if there are suspicions of undue influence or fraud, there may not be much-written evidence to rely on. In such situations, gathering testimonies from witnesses close to the person who made the will can be helpful. These witnesses may be able to provide information about the person's vulnerability or whether a third party had a controlling or dominant influence over them.

Costs to contest a will in the UK

The cost of contesting a will can vary depending on multiple factors, such as the case's complexity, the legal fees charged by your solicitor or law firm, and the point at which the inheritance dispute is resolved within the legal process.

For instance, if the dispute is resolved through an initial letter agreeing that the will is invalid, the costs generally range from £750 to £2,000. However, if further negotiation is needed, such as through mediation, the costs may be around £10,000. If the dispute ends in court, the costs can be significantly higher. However, it's important to note that over 95% of inheritance disputes are settled without involving the court.

It is crucial to discuss and clarify the potential costs with your solicitor upfront. Based on the specifics of your case, we can provide you with an estimate of the expected costs. 

We understand the importance of transparency and will work with you to provide a clear understanding of the potential costs involved in contesting a will. We strive to find efficient and cost-effective solutions for our clients while navigating the legal process with professionalism and expertise.

In general, there are three main types of costs associated with contesting a will:

• Legal fees: These are the fees the solicitor charges for their services, including drafting legal documents, representing you in court, and providing advice and guidance throughout the process.
• Court fees: If the case goes to court, fees may be associated with filing documents, attending hearings, and other court-related expenses.
• Other costs: Additional expenses may include obtaining expert opinions, gathering evidence, and hiring other professionals, such as barristers or forensic accountants, if needed for your case.

Time limits to contest a will

You have the right to challenge a will without any time limitations, but the sooner you take action, the better. Estates are usually administered within 12 to 18 months after the person's death, and it's essential to make your case known before the assets have been distributed to ensure your claim is considered. However, claims for reasonable financial provision must be brought within six months of any Grant of Probate or Letters of Administration date.

Funding a legal claim

When contesting a will, the legal costs are typically borne by the person contesting the will, also known as the claimant or the challenger. These costs usually include solicitor's fees, court fees, and any other associated expenses.

In some cases, if the challenge goes to court and is successful, the costs may be recovered from the deceased's estate, meaning that the estate would be responsible for paying the legal expenses. Costs can sometimes be claimed from the unsuccessful party if the court deems appropriate. However, it's important to note that this is not guaranteed, and the court has discretion in awarding costs.

Contesting a will after probate

Taking prompt action is crucial if you suspect you have valid grounds for contesting a will. Notifying the executor(s) of the will of your claim before any distribution of assets takes place is generally easier. In cases where a will may be invalid, it is possible to enter a 'caveat' against the estate to prevent the issue of a grant of probate.

While contesting a will after probate has been granted is technically possible, it can pose practical challenges if assets have already been distributed. Therefore, if you believe you have valid grounds for contesting a will, it is advisable to take swift action and seek legal advice. 

Proactively engaging with the executor(s) and considering legal options at the earliest opportunity can help protect your interests and increase the likelihood of a favourable outcome in a will dispute. Remember, every case is unique, and seeking professional legal guidance is essential to understand the specific legal requirements and potential implications of contesting a will after probate has been granted.

Success rates of contesting a will in the UK

Based on cases we take on for our clients, over 70% of people who decide to pursue an inheritance dispute received a financial benefit. 

Understanding the success rate of contesting a will in the UK is a common concern for individuals considering this legal action. While success rates can vary depending on various factors, such as the case's specific circumstances, the evidence available, and the legal expertise involved, it's essential to approach this topic with realistic expectations.

The success rate can depend on the merits of the grounds of dispute, the strength of evidence, and the legal strategies employed. Not all challenges to a will are successful, as the legal system places a high standard of proof on those seeking to contest a will.

In some cases, a successful outcome may involve settling through mediation or negotiation, while in other cases, it may require litigation and court proceedings. Success rates can also vary depending on the specific court jurisdiction and the judge's interpretation of the law.