How do I challenge a will?
Grounds for challenge
To challenge the validity of a will you have to establish one or more of the following grounds:
- The will was not correctly executed.
The will must be in writing, signed, dated and witnessed by two independent witnesses (neither of whom can be a beneficiary) at the same time as the person making the will.
- The testator lacked the necessary mental capacity, or otherwise lacked knowledge and approval of the contents of the will
The person making the will must have understood the nature of actually making the will, the extent of the property which he/she was disposing of and the claims to which he/she ought to give effect. Will disputes are common when the person making the will may have been suffering from Alzheimer's disease or other forms of dementia.
- The testator was subject to undue influence
There must have been no pressure on the person making the will to alter it or make any particular provisions in it.
- The will was forged/fraudulent
In some rare cases signatures on a will are altered or wills destroyed.
If the will is valid but you have not been sufficiently provided for or cut out of the will entirely, you may be able to make a claim for provision from the estate.
What to do first
It is important to act quickly, because a claim is easier to make before the estate is administered, and you can ensure that estate assets are protected. You (or your solicitor) should obtain a copy of the will as soon as possible. If the executor refuses to provide a copy you could issue a ‘caveat’, which stops the executor obtaining a grant of probate.
What’s the procedure for challenging a will?
You or your solicitor should write to the person administering the will (the executor) setting out your reasons for saying the will is invalid. There is usually a series of correspondence with the executor, and most claims are concluded by a negotiated settlement. If agreement is not possible then ultimately you may need to bring court proceedings.
Who pays the costs?
The general rule with legal disputes is that before court proceedings are issued each party bears their own costs, but after proceedings are issued the loser pays the winner’s costs. However on many occasions where a will is challenged all parties can recover their costs from estate funds.
This note provides general advice and is not intended to apply to any particular set of circumstances. To discuss your situation call the team on 01656 661115.