Challenging a Will

When Can You Challenge A Will?

Challenging a Will cannot be done while the maker of the Will is still alive. Until the person dies, they can change their Will at any time and therefore litigation is regarded as pointless.

Once a person dies it‘s important, if you wish to challenge their Will that action is taken promptly. If a challenge is brought after a Grant of Probate has been made, then the assets of the estate may already have been distributed, which can seriously complicate matters and so increase the costs of the action.

What Types Of Challenges Can Be Made?

A challenge can be brought for many reasons, the main ones are shown below:

Contested probate is a very complex area of law and there are only a few ways in which you can challenge a Will. Most fall into the following areas:

  • Undue influence - this is when the person making the Will is pressurised to make or change their Will.
  • Fraudulent Wills – this is when a signature is altered or perhaps when a previous Will is destroyed.
  • Invalid Wills - all Wills must comply with the Wills Act, meaning they must be in writing, signed and dated at the same time as being witnessed by two independent witnesses, who are not beneficiaries. If any of these rules are not complied with the will is invalid and fails.
  • Lack of capacity to make a Will - the person making the will must have the capacity to make it. In other words they must be over 18 (unless in the Armed Forces) and be able to appreciate and understand what effect their Will might have on their estate, meaning they must be able to comprehend the extent of their estate and be thoughtful of the claims that could be made on it. Will disputes are now more frequent when the person making the will (known as testator ) may have been suffering from a form of dementia.
  • Claims for financial maintenance – If you are in some way financially dependent on the deceased and have not been provided for in their Will, you can make a claim under the Inheritance Act 1975. However, there is only a limited time period to do this, 6 months from the date of the Grant of Probate.
  • Who is entitled to obtain the grant of representation or how the estate should be distributed.

What Are The Timeframes For Challenging A Will?

If you would like to make a claim on a Will, contact us now. The time limits given in law to challenge a Will are not long, 6 months after the Grant of Probate has been given, so the quicker you seek expert advice, the faster you will be in a position to understand your choices. The 1st call to Routh Clarke is free and we’re sure that will be enough for you to have a good grasp of the choices available to you.

How Do You Challenge A Will?

Which Court Is Responsible For Challenging Wills?

A challenge to a Will must be brought in either the Chancery Division of the High Court or (for lower value estates) in a County Court with chancery jurisdiction. This is referred to in legal circles as contentious probate. Before proceedings are commenced, it is necessary to obtain a minute of the value of the estate from the Principal Registry of the Family Division of the High Court. Once the claim is issued, notice must also be given to them to prevent the issue of a grant until proceedings have been concluded.

Who Pays The Costs Of Challenging A Will?

The costs of a challenge are always at the discretion of the Court. and usually follow the event. This means the "winner" usually recovers their legal costs from the "loser". However, any legal costs incurred by an executor will normally come out of the estate, unless they are regarded as acting unreasonably.

How Can Routh Clarke Help?

Need Some Detailed Advice On Challenging a Will?

The number of people who are contesting Wills is at record levels. Challenges to Wills can be extremely complicated and are regularly disputed. It is best to take proper legal advice from experts. We are specialist contested probate solicitors who use our probate and litigation experience to act for family members, Executors and Trustees . We have a great deal of experience in this area and can help you work out your next steps. If you would like to discuss you situation in more detail, please give us a call to see how we can help you.

For help with challenging a Will, call us 01935 823883