Dispute a Will – Grounds for Contesting

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The last will and testament of an individual often serve as the final expression of their wishes regarding the distribution of their estate. However, the execution of a will can sometimes lead to disputes among beneficiaries or potential heirs.

Contesting a will is a legal process undertaken when someone believes the will does not accurately reflect the deceased’s intentions or when there are suspicions of wrongdoing.

Expert Family Law outline the various grounds for contesting a will, providing a comprehensive overview of the legal justifications and processes involved. Understanding these grounds can help individuals determine whether they have a valid case to dispute a will.

Can you dispute a will? Grounds for Contesting

It is possible to dispute a will, but doing so requires legal grounds and usually involves a complex legal process. Contesting a will typically requires the challenger to prove that the will is invalid due to specific reasons recognised by law.

Whether you can contest a will depends on various factors. Listed below are the common grounds on which a will can be disputed:

Lack of testamentary capacity:

The person who made the will (the testator) must have been of sound mind at the time the will was created. They must be fully aware and understand the consequences of making the will, the contents of their estate, and exactly what they are leaving behind, and to whom.

If it can be shown that the testator did not understand the nature of making a will, the extent of their estate, or who the beneficiaries should be, the will can be contested.

Undue influence:

If it is believed that the testator was coerced or pressured by someone else to create the will or alter it in a way that does not reflect their true intentions, the will can be disputed on grounds of undue influence.

Fraud or forgery:

If the will was created or altered based on fraudulent information or if the signature of the testator was forged, the will can be declared invalid.

Improper execution:

Wills must be executed according to specific legal requirements. Common requirements include being signed by the testator with a witness present at the same time. If these formalities are not followed, the will can be contested.

Revocation:

If a more recent will or a legal document revoking the previous will is discovered, the earlier will can be contested and potentially set aside.

Mistake:

If the testator was under a mistaken belief about certain facts when creating the will, and this mistake affected the provisions of the will, it can be disputed.

Contesting a will often requires legal expertise and can involve court proceedings. It’s advisable to consult with a lawyer specializing in estate or probate law to assess the validity of your grounds for contesting a will and to guide you through the legal process.

Reasonable financial provision for family and dependents

In addition to the common grounds for contesting a will such as lack of mental capacity, undue influence, fraud, forgery, improper execution, revocation, and mistake, another significant reason to dispute a will is the failure to make reasonable inheritance provision for family and dependents.

This ground is particularly relevant under the Inheritance (Financial Provision for Family and Dependants) Act 1975.

Who Can Claim?

Under the Inheritance Act, certain individuals are entitled to claim reasonable financial provision if they believe the will does not provide for them adequately. These individuals typically include:

  • Spouse or civil partner: A surviving spouse or civil partner is entitled to a reasonable financial provision, which is not limited to maintenance but can be for their continued support and standard of living.
  • Former spouse or civil partner: A former spouse or civil partner, who has not remarried or entered into another civil partnership, can claim if they were financially dependent on the deceased.
  • Children: This includes biological, adopted, and sometimes stepchildren, who were financially dependent on the deceased.
  • Cohabitants: An individual who lived with the deceased as if they were a spouse or civil partner for at least two years prior to the death can claim.
  • Dependents: Any person who was financially maintained, either wholly or partly, by the deceased before their death.

Criteria for Reasonable Provision

The court assesses several factors to determine whether reasonable financial provision has been made, including:

  • Financial needs and resources: The financial needs and resources of the claimant, both current and foreseeable, are considered.
  • Obligations and responsibilities: The extent of the deceased’s obligations and responsibilities towards the claimant and other beneficiaries.
  • Size and nature of the estate: The overall value and composition of the estate, including any debts and liabilities.
  • Health and age: The health, age, and needs of the claimant, particularly if they have special needs or a disability.
  • Standard of living: The standard of living to which the claimant was accustomed during the lifetime of the deceased.

How to dispute a will

Disputing a will in England and Wales is a legal process that requires careful consideration and adherence to specific procedures. Here is a step-by-step guide on how to contest a will:

Determine Eligibility

First, confirm that you have the legal standing to contest the will. Eligible individuals typically include:

  • Spouses or civil partners
  • Former spouses or civil partners (if they haven’t remarried)
  • Children (including adopted and stepchildren)
  • Cohabitants who lived with the deceased for at least two years before death
  • Dependents who were financially supported by the deceased

 

Identify Grounds for Contesting

  • Determine the grounds on which you will contest the will.

 

Seek Legal Advice

Consult with a solicitor who specialises in probate and inheritance law. They can provide guidance on the strength of your case and the best course of action.

Gather evidence

Collect all relevant evidence to support your claim. This may include medical records, financial statements, correspondence, and witness testimonies.

Mediation and settlement

Before proceeding to court, consider mediation as a way to resolve the dispute. Mediation can be less costly and time-consuming than a court battle. Many disputes are settled out of court through negotiation.

File a Caveat

If you believe there are grounds to contest the will, you can file a caveat with the Probate Registry. A caveat prevents the grant of probate from being issued, giving you time to investigate and prepare your case. A caveat lasts for six months and can be renewed.

Initiate Legal Proceedings

If mediation fails or is not suitable, you may need to initiate legal proceedings. This involves filing a claim in the appropriate court:

  • Time limits for claims under the Inheritance Act are six months of the grant of probate.
  • Claims based on other grounds, such as undue influence or lack of capacity, should be made as soon as possible.

Court Hearings

The case will proceed to court if it is not settled through mediation. Both parties will present their evidence, and the judge will make a decision based on the facts and applicable law.

Court Decision

The court will determine whether the will is valid or if it should be set aside. If the court finds in your favour, it may alter the distribution of the estate to ensure reasonable provision is made or declare the will invalid, in which case the estate will be distributed according to intestacy laws or a previous valid will.

Appeal (if necessary)

If you disagree with the court’s decision, you may have the option to appeal. Your solicitor can advise you on the likelihood of success and the process involved.

How much does it cost to contest a will?

The costs associated contentious trust and probate disputes can vary widely and are often difficult to predict. The expenses incurred depend on several factors, including the number of people involved in the dispute and the nature of the dispute itself.

Initially, each party is responsible for their own costs during the litigation process. After the case is resolved, the judge will decide which party will bear the overall costs incurred.

Contrary to some beliefs, the expenses of a contentious probate case are not typically paid out of the estate through a Beddoe Order. Generally, the losing party is responsible for covering the costs of all parties involved. However, there are exceptions to this rule:

  • Ambiguity in the will: If the court needs to interpret the will due to its confusing or ambiguous content.
  • Cause of litigation: If the contentious probate proceedings are due to the actions of the will’s creator or those interested in the estate’s residue.
  • Defendant’s defence: If the defendant intends to prove the deceased’s will in a solemn form and the opposing party has reasonable grounds to challenge the will, involving cross-examination of witnesses.

The first and second exceptions are derived from the case of Spiers v English [1907] P 122.

These exceptions exist because the court takes on a special investigative role in probate claims. The court’s purpose is to clarify and explain the deceased’s wishes. It is crucial to strike a balance between taking reasonable steps to establish the deceased’s last wishes and pursuing the matter at all costs, as the latter can expose parties to greater cost risks.

How can Expert Family Law assist?

Expert Family Law have a panel of solicitors who can assist with wills and trust disputes.

Please note, we are not a firm of solicitors. If you contact us, we may pass your case onto a solicitor from our panel. Our panel firms pay fees to contribute to the upkeep of our website.

Each solicitor we work with is authorised and regulated by the Solicitors Regulation Authority (SRA)

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