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  7. Understanding the routes to contesting a will

Understanding the routes to contesting a will

After a death, disputes often arise over the handling of wills. Lodders answer some FAQs.

After a death, disputes and confusion often arise within beneficiary parties over the handling and breakdown of wills and trusts. We answer some FAQs to help.

Our answers should not be considered as formal legal advice as the background of any situation may affect the advice that we give.

Can a will be challenged?

Yes. There are three main situations in which a will can be challenged:

  • If the will has not been executed properly.
  • If the person making the will was not capable of making it.
  • If a relative or someone close to the deceased feels they have been left out of the will or inadequately provided for.

Other less common grounds for challenging a will are if the person making the will (known as the testator) is considered to have been subject to undue influence (or under pressure from a third party) or if there is believed to have been fraudulent calumny (ie: where a beneficiary under the will makes a false representation to the testator about the character of another beneficiary).

What is needed to ensure that a will is executed properly?

The court will look at several points to make sure that the will was executed properly. For example, the person making the will must have been over 18 years old, the will must have been witnessed by two people and both witnesses must have seen the testator sign their will.

I don’t think the testator was capable of making the will, how can I challenge it?

You may be able to challenge the will if you think the testator:

  • Did not have the required mental capacity to make the will
  • Did not know or understand that they were making a will
  • Did not approve the contents of the will
  • Was unduly influenced by someone else to make the will
  • Did not sign the will themselves (e.g. their signature was forged)

Our experts can help you understand if you can bring a challenge.

My relative or close one left me out of a will or made insufficient provision for my maintenance, what can I do?

You may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975. You should seek legal advice if you were:

  • A spouse of the deceased
  • A former spouse of the deceased and no financial settlement was agreed at the time of your divorce
  • Co-habiting with the deceased for at least two years immediately prior to their death
  • In a relationship with the deceased for at least two years immediately prior to their death where (although you did not live together) you had a joint household
  • An adult child of the deceased
  • A child of the family (e.g. a stepchild or adopted)
  • Maintained by the deceased immediately before their death

Is a ‘home made’ will invalid?

A home made will can be valid. However, if you think a will is invalid for any reason, you should seek advice.

What if there is no will?

The deceased person’s estate will pass in accordance with what are known as the intestacy rules.

You may still be able to raise a challenge if the intestacy rules do not provide for you to receive a share of the estate.  However, you will not automatically inherit anything from the deceased’s estate and if they have any surviving blood relatives, their entire estate will pass to those relatives unless you are successfully able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Those people mentioned under question 4 above would be entitled to bring a claim under the Act where there is no will in place and so no provision has been made for them or the provision that is made for them under the intestacy rules is insufficient for their maintenance.

How long do I have to bring a claim?

If you wish to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, you must file your claim with the court within six months (minus one day) of the grant of probate being issued.

If more than six months have passed since the grant was issued, you will need to seek the court’s permission to bring the claim late. The court may allow such an application in circumstances were there is a good reason for the delay. It is, however, important to act quickly and seek the right advice.

If I win, what I can expect to receive?

This will depend on a lot of different factors. The Inheritance (Provision for Family and Dependants) Act 1975 sets out a list of criteria that the court will consider in each case. However, decisions are made on a case-by-case basis.

Usually (unless you were a spouse of the deceased), successful claimants are awarded reasonable maintenance in all the circumstances. An experienced solicitor will be able to give you advice as to the level of award you might receive once they are in possession of all the information.

I want to bring a claim but some of the beneficiaries involved are minors. How will this affect me?

If the matter proceeds to court, a Judge will need to weigh up everyone’s financial needs and resources for the foreseeable future.

All minors will be represented by their litigation friend (usually a parent). Any settlement reached between the parties before the Judge reaches a decision will need to be supported by a barrister’s opinion and approved by the court.

Can I find out if a grant of probate has been issued?

Yes. An online probate search will reveal if a grant has been issued. We are able to help you with such a search.

Can I stop a grant from being issued?

Yes. You can enter what is known as a caveat to stop a grant from being issued. However, you should usually only do this if you wish to challenge the will on a ground that does not involve the Inheritance (Provision for Family and Dependants) Act 1975 or where you require some time to investigate matters.

If you are asked to remove the caveat because it could be construed as an abuse of process, you should seek legal advice and consider your position carefully or a costs order might be made against you if a court finds that you should have removed the caveat when asked.

I am a beneficiary under a will or the intestacy rules. Someone I know has bought a claim against the estate and I have been served with court papers. What should I do?

You should seek immediate legal advice. If the claim has already been issued you must acknowledge it within 21 days to be able to file your defence. If you don’t act quickly, you could be prevented from defending the claim. We are able to provide expert advice about this.

More information

If you require advice in relation to your specific case, our experts can assist you. Please contact us using the form below.

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Anjali is an associate solicitor and contentious probate specialist in Lodders’ Dispute Resolution team.