Contesting a Will FAQs

It is important to note initially that a will cannot be contested if the testator (i.e. the person who made the will) is still alive. A will can only be contested when the testator has died.  

To contest a will on any basis, you have to be able to show that you would benefit from the estate if that will was found to be invalid. That means you need to show that you would benefit under the testators previous valid will or, if there was no previous will, under the Rules of Intestacy. 

Whilst one cannot contest a will simply because they do not like the provisions made therein by the testator, there are numerous grounds on which a will can be contested, each of which has different requirements in order to evidence that the will is invalid. 

Such grounds are as follows: 

Formalities

 Whilst a will can be a relatively straightforward document, there are a number of formalities which must be followed for a will to be a legally binding document. These include a requirement that the will is signed by the testator in the presence of two witnesses, who must also sign the will. If such formalities are not complied with, the will becomes invalid and can be contested on this basis. 

Lack of testamentary capacity

 In order for a will to be valid, the testator must have the requisite testamentary capacity at the time when the will was made. They must understand the nature of the will, the extent of their estate, be able to comprehend any potential claims which may be brought and not be affected by any disorder of the mind. If the testator did not have testamentary capacity when the will was made, the will becomes invalid and can be contested on this basis. 

Lack of knowledge and approval

 A testator must both know and approve the contents of the will and as such, they should be able to provide clear instructions as to the provisions they wish to make and they should understand the purpose of the same. If the testator does not, the will becomes invalid and can be contested on this basis. 

Undue Influence

 In order for a will to be valid, the testator when making the will must be free from any undue influence. This means that the testator must have decided on the contents of their will free from any pressure / coercion from others. If the testator made the will because they had been under such influence that they feared something bad would happen if they didn’t make the will in that way (even if they did not want to), the will becomes invalid and can be contested on this basis. 

Fraudulent Calumny

 A will is invalid if the same is brought about as a result of the testator being fed untruths and dishonest statements about someone to bring about a change in their Will. These claims are often described as the testator having been slowly poisoned against another person (like a ‘drip, drip, drip’ over a long period) in order to alter their feelings and subsequently change their will. This is different to Undue Influence as in this case, the Testator believes what they hear about the person to be disinherited.  

Fraud / forgery

 Unsurprisingly, for a will to be valid, it must have been made and signed by the testator (unless exceptional circumstances apply). As such, if the will has been forged or the testator’s signature fraudulently forged, the will becomes invalid and can be contested on this basis. 

Please see contesting a will for more details on how you can approach this area or read our blog on what are the grounds to contest a will.

Generally, this is something that depends entirely on the basis upon which you are challenging the will and what evidence you may need to find and review in order to do the same. This could be from requesting medical records, preparing witness statements and making enquiries with various public and private agencies.  

 A contested will challenge can take anything from between six months to years if the contest is taken all the way to trial to be decided on by the court. Often disputes relating to will contests will settle at mediation although this is not guaranteed, however if you are considering whether to contest a will you should be prepared that this may take longer than you would think.  

A Grant of Probate (or Grant of Letters of Administration where there is no will) is the document obtained by those entitled to deal with a Deceased’s estate in order for them to gather and sell any assets and distribute the estate. 

You can prevent a Grant from being obtained for one or more of the following reasons: 

• You have concerns as to whether a will exists (and are seeking to investigate) and wish to prevent anyone from being able to obtain a Grant until investigations have been made as to the existence of a will. 
• You have concerns as to (and are seeking to investigate) the validity of the will and would benefit from the estate if such will was found to be invalid, and you wish to prevent steps being taken to administer the estate in accordance with such will.  
• You have concerns as to the conduct of the (and are seeking to investigate) person(s) dealing with the estate and have an interest in the estate, and you wish to prevent steps being taken by them to administer the estate. 

To prevent a Grant in these circumstances, you can enter a Caveat against the estate. A Caveat simply prevents anyone from obtaining a Grant and so tends to put on hold the administration of an estate. Details of how to enter a Caveat can be found here.  

Step one

1. If you are unsure if the deceased left a Will, or to check if there may have been a more recent Will than
   the one you already know of, there are several steps that can be taken: Check and review the deceased
   personal belongings, papers and residences.
2. Discuss with family members and close friends of the deceased to determine if the deceased made
   them aware of the existence and/or location of any Will.
3. If the deceased instructed a solicitor during his lifetime, contact the solicitor and/or their firm.
   Alternatively, if you are unsure, it is often worth contacting local solicitors to check. Solicitor’s firms often
   safely store original Wills for their clients. It is important to be aware, though, that due to Data Protection
   laws solicitors may not be able to provide a copy of the Will unless they have verified the identification of
   the person requesting it and their relationship to the deceased.
4. Contact any banks where the deceased held bank accounts. It has not been uncommon for banks to
   safely store wills.

Step two – check the probate registry

If a grant of probate has been obtained, a copy of the grant of probate and deceased’s Will can be ordered
from: Find a will | GOV.UK There will be a small cost to order the documents, of
approximately £1.50. The advanced search mechanism can be used to narrow the results.

Step three – check the National Will Register.

If the deceased died recently and there has not yet been an application for a grant of probate/
administration, a ‘Will search’ can be conducted through ‘Certainty Wills’. This is the largest register of Wills in the UK.

Step four – what next?

If a Will cannot be traced or a Will cannot be found, the general presumption is that the deceased died
without a will (“intestate”) and their estate will be administered under the Intestacy Rules, see our Intestacy
Remembrall for more information on that.

You will need our help if you believe that:

– The Will has been deliberately destroyed by someone other than the deceased;
OR

– the effect of the intestacy rules is that you do NOT receive reasonable financial
provision. Check out our Intestacy Remembrall to see what you are likely to
receive and then if you feel that is not enough, either give us a call or use our
free Claimchecker to see if you are able to bring a claim to change that.

– the deceased promised you some assets in life that intestacy will not provide
you with or if some of the assets in the deceased’s estate are yours already.

The starting point in England and Wales is that an individual has full testamentary freedom to leave their assets on their death to whomever they choose. Unlike in other countries with ‘forced heirship’ rules, in England and Wales there is no law requiring an individual to make provision on their death for any family members.

However, if you have concerns that the Will is not valid you may be able to bring a claim to ‘overturn’ that Will. It is important to know whether there is a previous Will (as well as what that Will says) before deciding whether to bring a claim.

Even if the Will is valid, you may be able to bring a claim under the Inheritance (Provision for Family & Dependants) Act 1975. To do so you will need to be one of the following classes of people:

– Husband / Wife / Civil Partner of the deceased;

– Former Husband / Former Wife / Former Civil Partner of the deceased, but not remarried or entered into a new Civil Partnership;

– A person living with the deceased as if they are husband and wife or civil partners for the two years prior to the deceased’s death;

– A child of the deceased or any person treated as a child of the deceased;

– Any person who was being maintained by the deceased immediately before their death.

If you are considering a claim or defending one, we have a free online reporting service that gives a much clearer idea of whether a disappointed beneficiary’s claim for greater provision can be made and if it has merit: 1975 Act ClaimChecker 

If you would like to discuss your result in further detail please do not hesitate to contact us.

You need our help if

– You believe there is a Will but cannot find a copy;

– You believe you are a beneficiary of a Will, but you cannot find out who the Executors are;

– You are a beneficiary of a Will, but the Executors are not speaking to you / keeping you updated;

–  You have concerns about the terms and / or wording of the Will;

– You are not a beneficiary but think you should be.

1. Check if there is a Will
2. If so, the beneficiaries (or class of beneficiaries) should be named in that document.
3. If not, the beneficiaries are the deceased’s surviving next of kin according to the order set out in the Rules of Intestacy.
4. Speak to the Executors / Personal Representatives of the Estate.

You need our help if:

– You believe there is a Will but cannot find a copy;

– You believe you are a beneficiary of a Will, but you cannot find out who the Executors are;

–  You are a beneficiary of a Will, but the Executors are not speaking to you / keeping you updated;

– You have concerns about the terms and / or wording of the Will;

– You are not a beneficiary but think you should be.