Contesting a will or inheritance FAQs

As his former spouse, you may be able to claim against his estate in court, on the grounds that his will does not make ‘reasonable financial provision’ for you. You need to act quickly as you must make your court claim within six months from the grant of probate.

You must not have remarried, and your claim will be blocked if your divorce was granted on the specific condition that you give up any such claim.

Your husband’s executors, or beneficiaries, could oppose your claim. There might also be competing claims for reasonable financial provision from your husband’s children or step-children, and anyone he was maintaining financially at the time of his death. If he remarried, there may also be a claim from his second spouse.

You may be able to show that the will is invalid if any of the following apply:

• Your father made a later will.
• Your father remarried after he made the will (unless the will explicitly says that it was made ‘in contemplation of’ the marriage).
• It was not properly signed and witnessed.
• It is a forgery.
• Your father lacked the mental capacity to make a will — he was incapable of making decisions when he made it.
• He made the will under serious duress or undue influence (such as coercion, intimidation or deception).
• He did not know of and approve the will’s contents.

Alternatively, family members and dependents may be able to contest a bequest in the will on the basis that it does not make ‘reasonable financial provision’ for them. However, if you are over 18 and no longer financially dependent on your father, it is less likely you will succeed.

If you have a valid claim, it is almost always better to settle it by negotiation or mediation rather than going to court. You should take legal advice quickly as there are time limits for making a claim.

You can contest the contents of your husband’s will on the grounds that it does not make ‘reasonable financial provision’ for you, provided you have not remarried. You must claim through the courts within six months of probate being granted.

Your husband’s executors, his children by his former marriage and any other beneficiaries might oppose your claim. His children may also be entitled to claim for reasonable financial provision. In deciding your claim the court will look at what you might have been awarded if you had divorced your husband.

You can ask a court to set aside a will if the will-maker was mentally incapable when they made it — for example, because of dementia.

The test is whether the will-maker could make decisions when the will was drawn up.

In practice, this means they need to understand what a will is, the effect of making one, the extent and value of their property, and any expectations their family, friends or others might have that they will be left something in the will.

Mental incapacity does not have to be permanent, and a person can be mentally incapable in relation to some types of decision but not others. If they were often confused and forgetful around the time they made their will, you may have a claim. A court may want to see evidence from a doctor or psychiatrist and from people who were around at the time the will was made.

The intestacy rules are legally binding rules saying how everything that your daughter owned — her ‘estate’ — is shared out if she died without making a will. They will entitle her husband to a significant part of your daughter’s estate.

His entitlement would have lapsed if he had remarried or entered into a civil partnership, but you say he is still her husband.

If your daughter left children they may be able to go to court and claim that the intestacy rules do not provide them with ‘reasonable financial provision’ and ask for some of his share. They only have six months to bring their court claim. If he fights the claim, the costs will eat into your daughter’s estate, leaving less for everybody.

If the children are his, he may be prepared to give up all or part of his share in their favour. You should take legal advice to see whether you can negotiate an agreement rather than going to court.

Almost certainly not.

Unless your mother was mentally incapable or under duress or undue influence at the time, she was entitled to make any gifts she wanted. And if she had then wanted to set the amount of that gift against your brother’s share under her will, she could have changed the will at any time.

As she did not do so, you are only entitled to 50 per cent of what she owned at her death.

You can contest a will if it was made under duress or undue influence. This needs to have been serious — coercion or intimidation, threats, actual violence, or some form of serious manipulation or deception. The court will ask whether your father probably thought “I don’t want to, but I have no choice”.

Emotional manipulation by your sister, such as appeals to pity or sentimentality or even bullying in the form of persistent nagging, is not usually enough — unless your father was particularly vulnerable to pressure at the time. Similarly, the fact that his will was made very shortly before his death is not suspicious in itself.

Your daughter should take legal advice. A free initial enquiry will help her understand whether she can contest the will and what the best way forward is. 

The intestacy rules are legally binding rules saying who gets what from the ‘estate’ — everything your partner owned when he died — if he had not made a will. If you were not married or in a civil partnership, you will get nothing under the intestacy rules.

However, there may be some property you are entitled to, as it does not count as part of your partner’s estate at all:

• Jointly-owned property, such as a joint bank account, may go direct to you.
• If you contributed to the purchase or mortgage costs of the home you shared, you may be entitled to a share of its value. The same applies for other assets: for example, if you bought a car together.
• You may be entitled to any gifts made to you by your partner ‘in contemplation of death’ — for example, if when he expected to die he handed over the keys to his car and told you to take it.

Additionally, if you were living together in the same house for two years before your partner’s death, you can go to court to claim ‘reasonable financial provision’. You must act quickly as you need to bring your claim within six months.

A situation like this can become difficult, as whoever is entitled to inherit under the intestacy rules may dispute your entitlement. You should take legal advice.

If you feel your sister is acting improperly and not moving as quickly as she should, raise it with her and ask for an account showing progress to date. You can then discuss this with her. She may agree to behave differently or to stand down as executor.

If she refuses to change you may be able to remove her as executor for incompetence or dishonesty. If there has been mismanagement — such as failing to distribute the estate correctly, or not paying off debts or tax due — she could even find herself personally liable to compensate those affected.

If it went to court you would have to show serious misbehaviour before the court would remove her. Stealing from the estate could well be enough, if it was major. So could failing to keep accounts or mismanaging the estate — for example, allowing it to reduce in value through inaction. However, a court is unlikely to remove an executor simply for being slow if this has done no real damage.

It is worth speaking to a solicitor at the outset so you know exactly what your rights are if she won’t co-operate.

You may be able to contest her will if it fails to honour a promise made to you, and you reasonably relied on that promise to your detriment. For example, if you helped your mother buy her house by contributing part of the purchase price or were paying the mortgage (particularly if your mother asked or encouraged you to do so) you may have a legal claim on the house. It does not matter whether the promise was made orally or in writing — although it is obviously easier to prove if it was in writing.

You may also be able to enforce a promise your mum made that you would have a particular asset when she died if:

• She made it ‘in contemplation of’ her death — for example, when she believed she was close to death.
• She passed control of the asset (for example, she handed over title documents to her home, or the key to a steel box she kept them in) to you.
• The asset remained hers in the meantime, so she could revoke the promise at any time.