Contested probate – how and why wills can be contested

Distributing the estate of a deceased person is a challenge that often results in legal wrangles between family and friends, especially if they feel that they haven't been included in the will or have been short changed' in some way. This can lead to family arguments and even a challenge to the will itself. But under what conditions can a will be challenged and how do you go about doing so? Here, we take a brief look at situations where a will might be challenged.

Five principal justifications for challenging a will

1.            Invalid will

To be valid, a will must be written and then signed in the presence of two witnesses, neither of whom can be beneficiaries of the will. If there is evidence to suggest that any of these conditions have not been met, it will be possible to contest the will.

2.            Lack of capacity

A will can only be legitimately made by an individual who understands the significance of the act and the consequences to their estate of doing so. This means they understand how the estate will be broken up and who will benefit after they have died. It ensures that a will was made by an individual who was in a competent mental state, and if there is any doubt over that fact, it can be challenged.

In recent years, it has become one of the most common justifications for contesting a will, largely due to the increasing number of dementia diagnoses among the elderly.

3.            Undue influence

Undue influence may rise when someone has put pressure on the person writing the will to include clauses or bequests that they would not have included if they were writing the will free of any outside influence. As well as being mentally competent, the will-maker needs to make decisions by themselves and without any coercion. If someone else - whether they are a beneficiary of the will or not - tries to pressurise the will-maker to change the contents of a will, it can be justifiably challenged.

4.            Financial maintenance

This is probably the biggest single factor for wills being challenged. If an individual was financially dependent on the deceased when they died (for example, a child or spouse) then it may be possible for them to challenge the will if they think that the will doesn't make adequate provision' for them. To do so they must meet the following two conditions:

¥             The claim must be made within six months of the Grant of Probate being issued

¥             The claimant must meet the criteria for a claimant: this includes a spouse or civil partner, a former spouse or civil partner who has not remarried, a co-habitant who had lived in the deceased's house for two years prior to their death, offspring, and any other individual who was financially maintained by the deceased before their death.

5.            Fraudulent wills

A will can be challenged because of doubts over the legitimacy of the will or a signature. If the will itself or a signature may have been forged, it is open to the challenge.

How to challenge a will

Typically, the most important factor in challenging a will is time. The earlier you are able to begin the process, the better. From the outset, our advice is to get help from a legal expert who specialises in contested wills as quickly as possible. This is such a complicated and difficult field that it's almost impossible to make any headway without that all-important legal help. If you feel you have legitimate grounds to challenge a will, whether that's financial reasons, or there's doubt that the person made the will with the full understanding of what they were doing, then the first thing your solicitor will do is to request a copy of the will from the executor.

Once that happens, a letter of claim can be filed contesting the will, which will need to detail the reasons why the person is challenging the will in the first place. This is usually for any one of the reasons listed above, although one of the most common reasons is that a dependent such as a child or direct relative feels that the will does not make reasonable provision' for a spouse or children.

Even if the claim goes to court there is no guarantee that the court will overturn the bequests laid out in the original will. If they find that the will makes adequate provision for a spouse or child, and that the person was in their right mind when they made the will and was not subject to any coercion, then the original will stands.

Conclusion Contesting a will can be a long and complex process that requires a great deal of expertise and experience. Due to the extremely personal nature of the events surrounding inheritance, it's a process that's typically both emotionally charged and difficult to approach with the required impartiality. For this reason, we recommend employing the assistance of legal professionals who specialise in wills and in particular contested probate.

Andrew Flagg is a Partner and Solicitor in the Dispute Resolution Department and can be contacted on 01323 434416 or by email afl@stephenrimmer.com