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How to contest a Will

If someone close to you has passed away and you’re concerned their Will doesn’t fairly represent their wishes, you might be able to dispute it with the help of a solicitor. To contest a Will, you need to:

  1. Contact a solicitor before probate has been granted.
  2. Sign a ‘caveat’ at your local probate registry.
  3. See if beneficiaries issue a ‘warning document’ objecting to your claim, and file an ‘appearance’ document acknowledging their interest in the deceased’s estate.
  4. Either come to an agreement or consider taking the case to court.

If the Will is thought to be unreasonable, you may have a chance of challenging the terms in court.

For example, it might be that the Will leaves a large sum of money to a charity with very little remaining for family members. Or perhaps the deceased was suffering from a serious illness at the time the Will was written, and you don’t believe their true intentions have been documented.

It’s also easy for mistakes to slip through the net, especially if someone has drafted their own Will. In fact, there is a host of reasons that a Will may be contested, including:

  1. Lack of testamentary capacity

To make a valid Will, you need to be considered to be of ‘sound mind’. You might believe the deceased lacked the mental capacity to make logical decisions at the time their Will was written.

Maybe the person suffered from dementia or was under the influence of medication that affected their mental capabilities. It’s worth noting that if the Will was witnessed by a doctor or medical professional, it might be much harder to contest.

  1. Lack of knowledge and approval

The deceased may not have properly grasped the contents of the Will. While they might not have lacked the mental capacity, perhaps they had learning disabilities, were visually impaired, had difficulty hearing, were frail or particularly vulnerable at the time the Will was written.

Likewise, you might feel as though they’ve been manipulated into deciding or had pressure put on them to leave money to a certain beneficiary. You’ll need to provide evidence of this before you can contest the Will.

  1. Forgery

You might have suspicions a Will is fraudulent. Although this is a very valid reason for questioning a Will, it might be difficult to prove. You may need to ask for a handwriting expert’s opinion and they might want to see a range of samples of the deceased’s writing and signatures to be able to reach a conclusion.

  1. Clerical error

Formally known as rectification and construction, you might believe that the person preparing the Will misunderstood what the testator told them, so doesn’t accurately reflect their wishes.

Equally, the testator’s wishes might not be clearly written in the Will. You might, for example, believe they struggled to understand legal terms so the Will has been incorrectly transcribed.

So, what can you do about it?

If you think you have a good reason to challenge a Will, you’ll need to do it through a solicitor. You’ll need to act quickly – ideally before probate has been granted. It’s best to seek legal advice as soon as you can, as you’ll be up against a tight deadline.

The next step is to sign an application form known as a ‘caveat’ at your local probate registry. This stops the process of probate from going ahead, meaning the executor (the person legally responsible for looking after the deceased’s money, property and possessions) can’t proceed until the dispute has been resolved.

If any beneficiaries decide to object to your claim, they’ll need to issue what’s known as a ‘warning document’. This will detail their reasons for objecting. Then, you’ll need to seek legal advice to decide whether you still want to proceed. In the meantime, the opposing party must formally acknowledge their interest in the deceased’s estate by filing a document known as an ‘appearance’.

If you come to an agreement, then no probate action is taken. Otherwise, the case will go to the courts.

What happens if you’re successful in court?

If you’re successful in making your claim, the Will should be declared invalid. It will then be replaced by the next most recent version of it. If there isn’t another Will, the rules of intestacy will apply.

The process for contesting a Will is highly complex. It can see you being caught up in a lengthy legal battle, as well as being costly for everyone involved. Should you want legal help, you can get in touch with our experts. They will be able to advise on the next steps toward defending your loved one’s wishes.

Note: First4Lawyers offers this information as guidance, not advice. Before taking any action, you should seek professional assistance tailored to your personal circumstances and not rely on First4Lawyers’ online information alone.