How to Contest a Will

A Will is a document that stipulates what a person would like to happen to their assets and their children after they die. When complete and signed correctly, it is legally binding, but many Wills are contested for a variety of different reasons. This is done in order to challenge the validity of the Will and allows loved ones to question whether it should be used or whether they have the right to make a claim against it.

The death of someone close to you can bring about a huge range of emotions, which can then give rise to a lot of questions when a Will is read. In this article, we look at when a Will can be contested and how to go about it if you feel that it is necessary.

To explain further, Lovedays Solicitors shares there insights into how you can contest a will.

The reasons for contesting a Will

The most common reason for contesting a Will is because those who are left behind do not believe it is a correct reflection of the person’s wishes or because they have concerns over how the Will was put together. It is important to remember that simply not liking the content of a Will does not give you the grounds to contest it, as there must be some legal reason for doing so.

You might feel that a Will has not been properly executed, whether it is because the signing process is not correct making the Will invalid, or the poor drafting of a Will that leads to errors. It may be that the person drafting the Will has made a clerical error, or they have not fully understood the wishes of the deceased and have communicated them incorrectly. It is also possible to contest a Will if you believe that it might have been altered or forged in some way, making it fraudulent.

Another reason to contest a Will is because you believe that the person writing it was put under some form of undue pressure or duress to do so. This could be in order to benefit one particular person or cut someone out and would be viewed as undue influence, making it invalid. A Will might also be contested due to the fact that the person writing it may not have had sufficient mental capacity at the time.

It needs to be clear that they fully understood the consequences of the decisions they were making, and that they knew the full extent of the estate that they were leaving behind. If they had an illness that meant they were not able to think rationally, or they were unable to comprehend what they were actually doing, then it can be classed as a lack of testamentary capacity.

A Will is sometimes contested if there are doubts of whether the person involved actually knew of the contents of the Will and approved them. It may be that a beneficiary has played a large or total part in writing the Will and it therefore would be considered to be invalid.

In some instances, it may be possible to contest a Will if it appears that promises may have been broken. If an individual is promised a gift or some form of property by the deceased and that promise is not reflected in the Will, they could still make a claim for it in a process of proprietary estoppel.

It is important to remember that anyone can contest a Will if they have a vested in it. This could include a spouse or children, or anyone who might have been mentioned in this Will or one that came before it.

Requirements of a valid Will

In order for a Will to be valid, it must be in writing, and signed by the testator, or someone else at their direction and in their presence. In addition to this, it is important that the testator intended for the Will to be valid when they signed it, and the signature must be acknowledged by at least two witnesses.

A Will can only be viewed by the executors before probate is issued, and becomes a public document afterwards.

The process of contesting a Will

If you feel that you need to contest a Will, then it is important to seek proper legal advice before you take any action. If your solicitor believes that you have a claim, then you will need to prepare and submit a claim to the Probate Registry Office which will halt the process of distribution of the estate. In some cases, it may be possible to resolve the situation out of court through mediation or dispute resolution, but if this is not possible the case will move forwards to litigation.

A court case can be lengthy and expensive, so it should not be entered lightly. Usually, the losing party will be ordered to pay the costs of the winning party, but this is at the discretion of the court. If a court decides that a Will is invalid, the estate will then be distributed at their discretion, so there will still be no guarantees what anyone is likely to receive from it. If there are no surviving families, then the estate will usually go to the Crown instead.

There are limits in place that dictate how long you have to contest a Will, and although it is technically possible to challenge a Will after probate, it does become much more difficult and the assets may have already been distributed, and so should be done as early as possible as it can be much harder to recover assets from beneficiaries.

Contesting a Will can be a difficult process, so it is important to seek professional legal advice as soon as you can. This will help to determine the validity of the Will and the reasons for contesting it, and a solicitor can then help you with the legal process of submitting a claim. It can be a very emotional process, so it is not something that should be entered lightly or without the right expertise and knowledge behind you.