Challenging the validity of a Will
How do I contest a Will?
If you wish to contest a Will, you should first look to enter a ‘caveat’ with the Probate Registry. The caveat will prevent a grant of probate or grant of letters of administration from being issued. A caveat is valid for six months, which should give you time to determine whether you have reasonable grounds on which to contest an ‘invalid Will’. The caveat can be extended, if necessary.
However, whilst a caveat is in place, the executors have the right to lodge a ‘warning’ to the Probate Registry. If this comes to fruition, you can then further substantiate your ‘caveat’ through what’s called an ‘appearance.’ It is important to note if it reaches this point, unless the parties agree by consent, the matter will have to be resolved in court. This of course can lead to extensive legal costs.
What are the grounds for contesting a Will?
There are several grounds for contesting a Will, such as:
- Testamentary capacity
This is the legal term to describe a person’s legal or mental ability to make or alter a valid Will. If the person making or amending the Will lacks testamentary capacity, then the Will is deemed invalid. It is imperative that the testator is of sound mind when the Will is executed.
Testamentary capacity is one of the most common grounds for contesting a Will.
- Lack of due execution
A valid Will must be in compliance with Section 9 of the Wills Act 1837. For example, the Will should be signed in the presence of two witnesses.
If the Will does not comply with the stipulations under Section 9 of the Wills Act 1837, it will not be valid.
- Undue influence/coercion
This is where the person making the Will may have been influenced or coerced into making or changing their Will.
Putting pressure on an individual to make a Will which does not reflect their true wishes can result in that Will being declared invalid. The amount of pressure needed varies according to the physical and mental capacity of the testator at the time they made the Will. The courts will consider these factors when determining how susceptible they may have been to coercion.
Pressure which causes someone to give in and make a Will for a quiet life can be sufficient if the pressure is such that it overbears the testator’s free judgment.
- Fraudulent calumny (poisoning of the mind)
This occurs in situations where a person has deliberately caused the person to change their Will, or make a Will on certain terms, based on false or dishonest representations.
This type of claim is a difficult one to prove, because the fraudulent conversations which took place will more often than not have taken place in private, without anyone present aside from: (1) the testator (who has now died); and (2) the person who made the false statements.
- Lack of knowledge and approval
If the person making the Will did not know or approve the contents of the Will, it may be invalid.
- Fraud/forgery
This applies where either the content of the Will is fraudulent or forged, or the signature of the person who made the Will is forged. If either of these apply, the Will is deemed invalid. However, this is a serious allegation and requires a high degree of proof.
How long do I have to contest a Will?
There is no time limit to contest the validity of Will, however, claims must always be brought as soon as possible. The Court has the power to strike out a claim if they believe that there has been an unreasonable delay in bringing it.
Can a Will still be overturned after probate has been granted?
Yes, if you are able to prove the Will is invalid, it can be overturned after probate. However, contesting a Will after probate can bring additional complications and costs. The longer the process is delayed, the more likely that the assets will already have been distributed.
Do I have to pay to contest a Will?
A common misconception is that the costs of probate claims are borne by the estate funds. However, in the unlikely event that your case goes all the way to trial, the usual position is that the “loser pays the winner’s costs”.
Most Will disputes that we deal with don’t make it to trial – that’s because we often settle the case through negotiations or mediation to try and achieve a favourable settlement for our clients before the matter reaches trial. We always take into account the costs that you’ve incurred during the negotiations, and we incorporate that sum when agreeing a settlement figure.
Contact us today to discuss your concerns.
To arrange an appointment:
- Call our Enquiries Team on 03330 144455
- Email enquiries@redkitelaw.co.uk
- Visit redkitelaw.co.uk for contact details of your nearest office