What are the grounds for contesting a will?

There are several possible reasons for challenging a will:

1. The will has not been properly executed

A will must be signed and witnessed according to strict rules to be valid and it is not unusual for DIY willmakers to get this wrong. However, unless there’s an obvious error, the Court will presume that the will has been validly executed – even if the will is handwritten or (in certain circumstances)signed with a thumbprint. You will require strong evidence to challenge a will on the grounds of lack of due execution.

2. The willmaker did not have the mental capacity to make a will

A person must have the appropriate level of mental capacity to make a will, which includes knowing the consequences of making the will and the approximate value of the estate they are leaving behind. The question of whether the willmaker was of sound mind is generally one of fact and determined by medical evidence. Mental capacity generally will be presumed if the person left a will which appears to be rational.

3. The willmaker was coerced into making the will (Undue Influence)

Coercion has a broad definition. It may take the form of physical threats, psychological manipulation, or the exploitation of a position of trust. If it can be shown that the willmaker was subjected to coercive behaviour and this led them to make decisions which they would not have otherwise made, then the will could be declared invalid.

4. The willmaker did not know and approve the contents of the will

If any suspicious details surround how the will was created — for instance, if one of the main beneficiaries had a substantial role in writing the will or setting up it, or the will is written in a language which is not the testator’s first language — then this may impede on its validity. The court will seek to determine whether the deceased actually knew and agreed to what is written inside their will.

5. The will has been altered or forged

Fraud and forgery cases are rare when contesting a will because there is a higher burden of proof with criminal actions, and one party to the fraud (the deceased) is not able to give evidence. You will need the strongest evidence to contest a will on these grounds, which may include the evidence of a handwriting expert to determine whether the signature of the person who made the will is genuine.

6. The will did not reflect the deceased’s wishes (Rectification)

If the will does not reflect the true wishes of the deceased, there may be a claim for the will to be rectified. This can be where the solicitor who drafted the will didn’t understand the willmaker’s intentions or made a clerical error when the will was drawn up. Virtually all claims for rectification involve a negligent act by the solicitor who drafted the will. Depending on your circumstances, your solicitor may recommend that you pursue a professional negligence claim as well as, or instead of, a claim for rectification.

How long do I have to contest a will?

The time limit for making a claim depends on the ground you are claiming on. Rectification claims, for example, have to be brought within six months of the Grant of Probate being issued. If you believe there are adequate grounds to challenge the validity of a will, then you should seek professional legal advice as soon as possible after the death. If appropriate, your solicitor can enter a caveat with the Probate Registry to prevent a Grant of Probate being taken out while the claim is investigated.

How much does it cost to contest a will and who pays?

The cost of contesting a will can vary significantly depending on the complexity of your case and the tactics used by the solicitors involved. Litigation is the most expensive part of a claim and the legal spend could easily be tens of thousands of pounds if a case proceeds to trial. Resolving matters through mediation allows the claim to be settled at a lower cost.

The usual position in contentious probate cases is that the loser pays the winner’s costs; however, this is a matter for the Court to decide. The Court may order the estate to pay the costs or that each party bears their own costs. If the parties settle the claim at any stage, then costs will be part of the negotiations that take place.

What happens when you contest a will?

Before challenging the validity of a will, it is important to understand the implications of doing so. If you are successful and the will is declared invalid, then an earlier, valid will could be admitted to probate in its place. If there is no such valid will, then the deceased’s estate will be distributed according to the intestacy rules.

Either way, the deceased’s estate will be divided up differently. You will need to be sure that your claim is justified and that the outcome will be better for you under these alternative scenarios.

How we can help

If you’re looking to contest a will, or you’re defending a claim from another person, our team can help. We have a wealth of experience in challenging and defending wills and our specialist solicitors are adept at understanding the complexities that can arise. We offer a free initial consultation to discuss your potential claim, so please get in touch with us to find out how we can help.