Contesting a will
When someone dies, the administration of the estate will be dealt with, and the net estate distributed according to the terms of the deceased’s Will (or under the intestacy rules if there is no valid Will). In recent years, there has been an increasing number of Wills disputes, with the courts having to rule in many cases.
Some disputes involve, for instance, potential beneficiaries who have been unfairly excluded from the Will; whilst other cases arise where a Will has been found to be invalid for some reason. Whatever the issue, there is a tight time limit within which a claim must be made: claims must be made within 6 months of the date the Grant of Probate is obtained.
Who can contest a Will?
Anyone who has a beneficial interest, or potential beneficial interest in the deceased’s estate, can contest a Will if they believe they have a valid claim. Typically, those who contest a Will are the surviving spouse, children, cohabitee and other dependents, such as adult children who were being financial supported by the deceased, and children who are treated as a child of the family.
What should an individual do if they believe they have a claim?
If someone believes the Will is invalid, or believes they have a valid claim against the estate, should seek legal advice as soon as possible. One of the first steps that can be taken to protect their interests is to apply for a ‘caveat’ which prevents the assets of the estate being distributed pending the outcome of the dispute.
How long will this caveat last?
The caveat will last for six months, although it can be renewed. Often, the dispute will be resolved before it reaches court.
What happens if an agreement cannot be reached during the caveat stage?
If an agreement cannot be reached during the caveat stage, and the dispute cannot be resolved, a formal claim may be made to court. Claims against an estate involving a Will typically fall into two categories:
- The Will is invalid
- The Will did not make sufficient (or any) provision for the claimant
A claim that the Will is invalid
A Will must fulfil certain legal and procedural requirements in order to be legally valid. A Will may, therefore, be invalid for a number of reasons including:
- It was not property executed: a Will must comply with strict legal requirements under the Wills Act 1837. It must, for instance, be in writing and signed by the testator in the presence of two independent witnesses (neither of whom should be a beneficiary, or married to a beneficiary of the Will).
- There is evidence of fraud or duress: if the testator was forced to make the Will, or it was fraudulent, the Will is invalid.
- Lack of testamentary capacity: the testator must have been mentally capable of making a Will, including understanding the implications of its contents. He or she must have been of sound mind.
For more information on:
- Dependency claims
- How will the court assess a dependency claim?
- Are there any other grounds on which a Will can be disputed?