How to Contest a Will
It’s difficult enough to lose a loved one, but a time of bereavement can be worsened when the contents of their will are not what was expected. For those left out of a will, there can be many emotions, including anger and disappointment. Where someone believes that they have been wrongly deprived, it is possible to contest the will.
Who can contest a will?
A wide range of people and organisations can legally contest a will. These include:
- Existing beneficiaries
- Individuals or organisations who have been disinherited
- People who are related to the deceased, or who were dependent upon the deceased, for example children or spouses
- Other third parties who are affected by the current will, or were affected by a previous will
- Creditors who are owed money
How to contest a will
The first step is to ascertain whether there are legal grounds to contest a will. Legal grounds include fraud, coercion, or doubts about mental capacity. In addition, British law, while allowing anyone to gift their estate to anyone, also holds certain expectations about the division of estates, under the Inheritance Act 1975. This relates to provision for children and marital partners and, in certain circumstances, allows for challenges.
Is there a time limit to contest a will?
Yes, there is. The exact time limit depends on the grounds for challenging the will. For example, if the challenge is based on the Inheritance Act 1975, then the time limit is within six months of probate being granted.
If it is a beneficiary who believes that they should have been granted a larger part of the estate, then they have up to twelve years from the date of death to launch a challenge. Where it is believed that fraud may have been committed, there is no time limit, and a challenge may be brought at any time.
Ideally, however, any contest should ideally occur prior to probate (when the legal responsibility for fulfilling the deceased’s wishes is granted, as the executor is legally entitled to distribute the estate once it has been issued). Such a challenge is issued through the submission of a Caveat to the Probate Court. This prevents the probate being issued.
How long does contesting a will take?
This can vary enormously, depending on whether the beneficiaries are willing to consider the challenge. If it can be settled amicably, then the issue can be resolved fairly quickly. However, this is far from a common occurrence. Where there is a dispute, challenging a will can take up to a couple of years.
What happens next?
Often, when the Caveat has been lodged, the existing beneficiaries of the will issue a ‘warning’ document, to dispute any contest against the will. At this point, the person challenging the will must legally and formally express their interest in the deceased’s estate. This is known as an Appearance.
The next step is likely to be a Alternative Dispute Resolution. This takes the form of mediation, and aims to resolve the issue with minimum cost and animosity. Should the claim not be resolved, the case will then go to court, but the process of having tried mediation to come to a resolution will help the case for the contestor.
How much does it cost to challenge a will?
Costs will depend upon the complexity of the case, and how long the dispute takes to resolve. Legal Aid is not available for challenging a will, although some household insurance policies include legal expenses that may cover the costs. It is worth noting that it is always cheaper to achieve a resolution through mediation than to pursue a case through the courts.
If you are considering contesting a will, then Robinsons will be delighted to hear from you. Our expert solicitors will be able to advise if you have a legal challenge, and will guide you efficiently and empathetically through the entire process.