CONTESTING A WILL – EVERYTHING YOU NEED TO KNOW

March 15, 2024
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Contesting a will is the process of challenging the validity of someone’s last will and testament after they have died. It can be done by potential beneficiaries or heirs who believe that the contents of the will are not in line with their expectations or are not valid for various reasons. This blog post will discuss the grounds for contesting the will, the steps involved, and the potential outcomes of such a challenge. You can learn all you need to know with our free, short 10 minute online course. You get a certificate, £50 voucher and a chance to ‘spin to win’ a professionally written Will.

Rules for Contesting a Will

A will contest is a challenge that can be presented during probate to dispute the validity of an existing will. In order to contest a will, there are certain requirements that must be met. If you feel like your interests have not been taken into consideration, it may be worth considering whether there are valid grounds for lodging such a claim against a deceased’s estate. Consider both motive and evidence when taking on this endeavour as the Courts often require proof of certain conditions being met before allowing a challenge of proceedings to take place.

Can I contest a Will in its entirety?

Yes, it’s possible to contest an entire will. In many instances, it is the only proper course of action. For example, if the deceased lacked the capacity to create and sign a will when they visited the will writer, the whole document can be voided.

Can I contest a Will amendment?

Yes, but not just on your say-so or belief you have been hard done by. No court will take only your word for it. Documents from the deceased’s doctor and testimony from people close to the deceased will also be required.

Can I dispute a Will amendment?

Yes, changes made to a will in the form of codicil can be contested. A codicil is a separate legal document that is usually executed at some point after the creation of the original will. It is possible for a decedent to execute their will when they had the capacity and then later on execute a codicil while not having capacity. A codicil can be challenged under such circumstances.

What is considered grounds for Contesting a Will?

Suppose you are a beneficiary of your deceased grandparent’s estate, but so is your sibling, who, unlike you, failed to keep in touch with your grandparents or help them during the final years of their lives. You find it unfair that your grandparents left you and your sibling equal shares of their estate. Can you fight a will on these grounds?

While it can be heartbreaking to learn that you and a sibling have been left equal shares of your deceased grandparent’s estate, especially if one is felt to be undeserving because they neglected the relationship leading up to their passing – contesting a will, for this reason, won’t provide any legal recourse. Unless unethical behaviour such as fraud or undue influence on behalf of either party can be proven by evidence, there isn’t much else that could overturn an existing testamentary document.

Valid Grounds for Contesting a Will

Undue Influence: Excessive persuasion was used to compel the decedent to make drastic changes to their estate plan.
Lack of Capacity: The decedent had not been mentally competent enough to execute an estate plan when they did.
Elder Abuse: Financial, psychological, or physical abuse had been perpetrated against the deceased, which played a role in their signing of a new will or codicil.
Fraud: The deceased had been deceived into changing or executing their will.
Forgery: A will or codicil had been fraudulently signed by someone other than the deceased.
Lack of Due Execution: The procedures prescribed by the law had not been followed by the deceased when executing their will.
Mistake: The deceased executed a will by mistake, believing it to be another type of document.
Revocation: The deceased revoked their will by executing a new will, modifying their old will or outright destroying it.

What is ‘Standing’ in Will Contests?

Whether or not a party can contest a will depends on whether they have what is known as “standing” — i.e. a financial stake in the outcome of the matter.

In order to have standing to file a will contest, the will you seek to contest must provide you with less than what you would receive if the will were set aside. In other words, if the will be invalidated would mean that you receive more from the estate; you have standing. On the other hand, if you stand to receive more under the will you are seeking to contest, or if you stand to receive nothing in the event the will is set aside, you would not have ‘standing’ to contest the will.

For example, suppose you were the close friend of the deceased who cared for them toward the end of their life when they had been ill. The deceased’s family members, on the other hand, were nowhere to be found. You were certain that the deceased would leave you some kind of gift through their will, but when the will was read, your name was not mentioned. It is baffling to you that the deceased left most of their assets to their estranged family members instead of you. Can a will be contested by the friend in this scenario? The answer to this question would generally be no.

The rules of intestate succession

When someone passes away without a valid will, their assets pass to their heirs through a process called intestate succession. Heirs generally consist of the closest family members of the deceased, which include their spouse, children, parents, etc. In the aforementioned scenario, if the deceased only had one will, and that will was cancelled through a successful will contest, their assets would pass to the deceased’s family. Intestate succession statutes do not allow much room for interpretation, nor can they be contested. The friend, therefore, would not have standing to contest the will.

The exception would be if the deceased had executed a prior will that did leave their friend a beneficial interest in the estate; in this scenario, the friend would have standing to contest the will because their share would increase in the event the new will were set aside.

What happens after a successful contest?

If you successfully prove your case that a will is invalid, then the deceased’s assets will generally pass according to the provisions set out by their prior estate planning documents (as long as they were deemed valid).

If the deceased had no prior estate planning documents that were valid, the assets would generally pass to their heirs through the process of intestate succession. Usually, those who inherit through intestacy are the surviving spouse and children of the deceased. Only if the deceased did not have a spouse or children would the assets pass to siblings, parents and grandparents if alive.

A family dispute is avoidable

Contesting a Will should not be taken lightly. It is important to consider the length of the process, and potential obstacles and prepare for outcomes that may not always be favourable. Depending on the complexity of the case, it can take an extended period of time for both parties to reach a satisfactory conclusion. Furthermore, given the legal fees associated with such proceedings (possibly reaching as much as £100,000), if it is possible to settle any disputes out of court, then both parties would be advised to try and find a mutually agreeable solution instead.

Ultimately, there are many factors to take into consideration before attempting to contest a Will and seeking expert legal advice is recommended in order to determine whether or not taking this route will be beneficial or fruitful. Taking time to discern what’s best for all parties involved is essential in any sort of litigation, and it pays off in the end.

Did you know that 3 in 4 people are likely to experience a will, inheritance, or probate dispute in their lifetime? Inheritance disputes among siblings are the most common form of dispute. Communication and openness with such matters with your beneficiaries can save them years of conflict.

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