The complete guide to contesting a will

When a member of your family, close friend or loved one passes away and you believe there is a discernible error within the last will and testament they have left behind, or that it has not been correctly implemented in some way, then you may have valid cause to legally contest the contents of their will in court.

The process of contesting a will is often complex, which makes expert legal advice essential to validate your situation before committing to formal legal proceedings. This comprehensive guide covers all aspects involved with contesting a will, and outlines the necessary steps that need to be taken to submit a successful claim.

What is a last will and testament?

A last will and testament allows a person to decide exactly what will happen to their money, property and possessions in the event of their death. It may also include care instructions for any children aged under 18. As a formal legal document, it must be witnessed and signed for it to be considered legally valid. The process of confirming the validity of a will is known as probate.

People can write their own will by themselves, though if it involves complex terms then it is always best to seek the advice of an experienced legal professional. A will must also be stored safely, whether at home, with a solicitor or a third-party company that offers storage of wills as part of their service.

In the event that a person does not submit a formal will to a solicitor then the law will then make an informed judgment on the administration of their estate, and decide which people or parties are due to inherit their money and assets. This legal term for this process is intestacy.

Can a will be contested?

Yes, although the person contesting the will must be a spouse, child, cohabitee or a person who is expressly mentioned in the will, or a previous will. The person must also ensure they have valid legal grounds to contest a last will and testament successfully.

Grounds for appeal include the following:

  • Lack of testamentary capacity – The person creating the terms of the will, known as the testator, must be of sound mind when they create and sign the document. They must understand the full extent of their estate and possessions and understand who they are choosing to include and exclude.
  • Lack of due execution – The testator must sign their will in the presence of at least two formal witnesses who are present at the time of signing. Each witness must then also give signed receipt that they have witnessed the signing of the will by the testator. If there is any evidence to suggest otherwise then a claim of lack of due execution may then be raised.
  • Undue coercion – A claim may be raised if there is significant evidence to suggest that the testator has been manipulated into submitting unfair or invalid terms within their will. Due to the nature of this claim, the supporting evidence must be of a high standard in order to stand any chance of it being successful.
  • Fraud – It possible to contest a will if the claimant has valid grounds to suggest that the will has been forged in any way. For instance, if a testator instructs another person to formalise the terms of their will, and then that person submits false terms to benefit themselves and forges the signature of the testator, then the will may be overturned and declared fraudulent.

How long do I have to contest a will?

It is essential to act as swiftly as possible when contesting a will as there may be a stringent time period in which a will is liable to be contested from the date of death, the grant of probate or from the issue of letters of administration.

This time period depends on the nature of the claim. For instance, if a claim is made in lieu of the Inheritance Act then a person must submit their claim within six months of the date of probate. The information below details the most common types of claims and the allotted time period in which they must be made:

  • Inheritance act – Six months from the issue of the grant of probate
  • Claim for maintenance – Six months from the issue of the grant of probate
  • Beneficiary making claim against the will – 12 years from date of death
  • Fraud – No time limit

How to contest a will – a step-by-step guide

We’ll go into more detail below, but in summary here’s how to contest a will:

  1. Act quickly
  2. Lodge a caveat
  3. Pursue court action

Act quickly – If you are considering the option of contesting a will for whatever reason then you should seek legal advice as a matter of urgency to confirm whether you are able to submit a claim within the above time constraints. Contesting a will after probate has been granted is possible, though it is always preferable to raise a claim beforehand.

Lodge a caveat – Once a solicitor has validated your claim, you are then in a position to submit a formal claim, known as a ‘caveat’, to the Probate Registry office. This means that an official probate cannot be completed and issued – and therefore the deceased’s money and estate cannot be distributed – without first notifying the claimant and resolving the dispute. The caveat lasts for six months, though it can be renewed where applicable.

Pursue court action – Often, a dispute may be resolved outside of court through mediation or another alternative form of dispute resolution; however, in the event that an agreement cannot be reached during the caveat stage then a formal court claim may be then submitted. These claims tend to be categorised in one of two ways: a claim against the validity of the will, or a claim that the will does not make sufficient provision for the claimant. It should also be considered by all parties involved that court costs can soon mount up in the event of a prolonged dispute, which is why it is always preferable to reach a mutual agreement outside of court wherever possible.

What to do if a will is contested against

If you are a family relation or friend to the deceased, or a direct beneficiary from their will, and are therefore due to deal with a formal claim made by a claimant that the will is invalid then it is equally important to have an in-depth understanding of the above information and seek legal counsel as soon as possible.

As before, it is always preferable to reach an amicable agreement outside of court to avoid the potentially high cost of court fees. In the event that the case is taken to court and the will is declared invalid for whatever reason then the court may rule to discredit part of the will, or the entire will outright. They may then refer to an earlier, validated will if one exists. If there is no earlier will to refer to then the money, property and possessions of the deceased may be distributed under intestacy law.

Regardless of your situation, if you’re looking to contest a will or are dealing with a contested will, then we are here to help with friendly, expert legal support and advice. Please contact our team of contentious probate solicitors for further information.