How do I challenge or dispute a Will?
Losing a loved one is difficult enough without contemplating a dispute over their Will or estate. Unfortunately, disagreements over Wills and estates have become commonplace, and the legal process for bringing a claim can seem daunting.
In this blog, our expert Will dispute solicitors explain all you need to know about challenging or contesting a Will.
What are the requirements for a valid Will?
A Will is a vitally important document that allows your wishes to be carried out once you are gone. The Will helps direct and guide loved ones in how your assets, including your property, should be distributed upon your death.
As a result, a Will can be one of the most significant financial documents people sign in their lifetimes. Consequently, there are strict requirements in place to ensure a Will is written, signed and witnessed correctly for it to be legally valid.
According to the Wills Act 1837, a Will is valid if:
- The Testator (the person creating their Will) is aged 18 or over (unless they are a soldier on active duty or a sailor at sea)
- It is in writing
- It is signed by the Testator or someone in their presence and at their direction
- The person creating the Will has the intention to make a valid Will when signing it
- The Testator’s signature is witnessed by at least two people and those people sign
For a Will to be valid, the Testator must have the necessary mental capacity to do so (called ‘testamentary capacity’), and the Will must be made voluntarily and without pressure or undue influence from any other person.
What are the grounds for contesting a Will?
Challenging or contesting a Will means that you believe that a Will is wrong, perhaps because the Testator (the person making the Will) did not have capacity or the document itself is fake or the signatures forged, for example.
The validity of a Will can be challenged on these grounds:
- It is incorrectly witnessed and/or executed (as outlined above)
- The Testator lacked capacity at the time of making the Will
- The person creating the Will was subjected to undue influence at the relevant time
- The terms of the Will were based on false statements made to the Testator for the purpose of persuading them to benefit one party at the expense of another (known as ’Fraudulent Calumny’)
Claiming against an estate
Sometimes, a Will may be perfectly valid, but you believe that it does not leave you, as a loved one, with enough or even anything at all.
Estate dispute claims fall under the Inheritance (Provision for Family and Dependants) Act 1975 (‘Inheritance Act’), which allows certain people, e.g., spouses and children, to claim increased financial provision from a deceased person’s estate.
You may be able to claim under the Inheritance Act 1975 if you believe that you have been left out of a loved one’s Will or if you feel the inheritance you have been left is too small.
The best starting point is to speak to a specialist estate disputes solicitor who can advise you on whether you are eligible to claim and what the next steps are.
Who is eligible to claim under the Inheritance Act 1975?
Not only is it important to understand the grounds for challenging a Will or estate, but also who is eligible to make a claim. You can claim against an estate under the Inheritance Act 1975 if you are:
- The spouse or civil partner of the deceased
- A person living with the deceased as if they were a spouse or civil partner
- A former spouse or civil partner of the deceased (unless you have remarried or entered into a new civil partnership)
- A child of the deceased
- A person who was treated by the deceased as a child of the family
- A person who was (financially) maintained by the deceased
When can I contest a Will or claim against an estate?
If you are considering such a claim, you should seek legal advice as soon as possible, ideally before a grant has been issued and/or the estate administered. Time limits depend on the type of claim you are making; some require you to make a start within six months of probate being granted.
However, if you want to dispute the validity of a Will, there may not be a strict time limit. Every situation and case is unique, however, and a specialist solicitor will be able to advise you on whether you are eligible to claim and about any time limits.
How are inheritance disputes resolved?
Many estate disputes can be resolved out of court through interparty negotiation and mediation. Mediation is where both parties meet and attempt to reach an agreement with which they are both happy. Where this is not successful, the dispute can go to court.
If proceedings are issued, a judge will make any final decision by way of a court order. Although every Inheritance Act 1975 claim is judged on its own circumstances, the court will always consider:
- The financial resources and needs of any Claimant and beneficiary of the estate
- Any obligations and responsibilities the Testator had towards a Claimant and beneficiary of the estate
- The size and nature of the estate
- Any physical or mental disability of a Claimant and beneficiary
How we can help
Whether you believe you have been left out of a loved one’s Will, your inheritance is less than expected, or you have concerns about the validity of a Will, our specialist solicitors can advise you on the next steps.