Questions to consider when attempting to contest a will

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Published on Friday, 07 May 2021 17:45

Last Updated on 10 May 2021

Monica Costa

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Contesting a will can be a difficult process. Both in terms of the law and the effects on you personally, especially when in the middle of grieving.

When it comes to seeking legal advice for contesting a will, consider why you believe you need to. If it’s because you feel like you should have inherited more, although it can be difficult to get this sorted legally it is not impossible, but you will need to have the right grounds, and in the least have a  connection with the deceased and that you feel you have not been provided for fairly.

Going to law consultants after a family member sadly passes away isn’t something anyone wants to do. But sometimes it becomes necessary.

Usually, this will happen if you feel like you have not been provided for in a will or you have concerns over the validity of it.

Will invalidity refers to when you believe the deceased was not in the right frame of mind, or lacked the mental capacity to make it. This could be due to an illnesses, such as dementia or Alzheimer’s.

You may feel that you want to contest the will as you feel you were harshly cut out of the will, or you were told something else would happen upon death.

Sometimes, you may feel that the will is valid, but you’ve not been properly provided for under the terms of the will. In these cases, you could be eligible to make a claim under the Inheritance Act of 1975.

You have no legal reason to challenge the validity of the Will if you lack proper grounds and simply don’t like the way the assets have been left. . However, if you have concerns as to the way in which the assets are being distributed and these are valid concerns you may be able to challenge the way in which the estate is being handled by the Executor.

Whatever the situation, it’s important to act quickly before the will distribution begins.

How does it work?

Once it’s been established that you have a reason for contesting a will, you may be able to place a caveat over the estate but not in situations where you wish to bring a claim under the Inheritance Act.  A caveat means you’ll stop the process of obtaining a Grant, giving you and your solicitor time to gather evidence and consider the merits of your claim.

The executors of the will won’t be able to distribute the estate whilst a caveat is in place. A caveat remains in place for six months but can be renewed.

Time is of the essence in cases like this, it’s crucial that you sign up to a qualified law firm who have experience in this area. Osbornes Law have this guide to contesting a will which outlines how they will work with you and how they will deal with matters empathetically and in your best interests.

Once they’ve entered a caveat, if possible, they will gain a copy of the will alongside any documentary evidence to support your claim.

You will explain your connection, making them aware of any promises made from the deceased and so on.

Your lawyers will then contact the representatives of the will, informing of your claim in the hopes of reaching an agreement to avoid any further court proceedings.

You should feel prepared for further mediation with family, or other forms of alternative resolutions if things can’t be settled.

Am I eligible?

If you’re an important person connected to the deceased, such as a spouse, child, or someone that was financially dependent on the deceased you may be eligible to bring a claim.

Depending on the nature of your dispute, there will be different time limits placed upon you. For dependency claims, where you’re claiming for financial provisions from the estate, you’ll have six months to issue your claim.

If you’re a beneficiary making a claim against a will, the time is much higher, 12 years from the date of death, although it’s important that you act fast, as evidence may expire.

For claims against a breach of trust, there is around six years to make a claim. These claims are for when you believe the estate has not been properly distributed. There are no time limits for claims of fraud.

The cost of contesting can depend on a few factors, such as the time length of a claim. If litigation is needed, then the case can become expensive due to amounts of work needed.

Will I be successful?

About half of contested will cases in the UK get settled before court, with 2% getting to the final hearing.

If your case is strong, then you should get an early settlement way before any litigation or court proceedings are necessary.

If you do go to court, make sure you dress professionally. Courts require professionalism throughout the process.

Consider the reason for contesting a will. To bring a formal claim you need to have legal grounds to do so. The recent COVID-19 pandemic recently led to a rise in numbers of wills being made, but also logistical problems.

Legal requirements temporarily were relaxed to allow wills to be executed using electronic means and witnesses. This complicates matters slightly, as there is more uncertainty about what constitutes as a valid will signing.