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How to contest a Will

If you are unhappy with a Will, you may be able to contest it.

There is no point pretending that this is not a complicated process. Or that it isn’t going to be emotionally draining at times. Or that it might be expensive.

Some disputes involve potential beneficiaries who have been unfairly excluded from a Will whilst others arise when a Will has been found to be invalid. Read more about this in our legal guides What are the grounds for contesting a Will? and Who can contest a Will?

Here is a brief guide about what you need to do to begin contesting a Will:

Obtain the grant of probate or letters of administration

It’s important to obtain an actual copy of the grant of probate or letters of administration as this will have the exact date when probate was issued. The grant of probate, which you can obtain from The Probate Registry, will show the name of the executor, their solicitors, the last known address of the deceased and the net/gross value of the estate.

The date of probate is important as many limitation dates – the time you have to put in your claim – start from when probate was issued.

Establish if you have a potential claim

There are many grounds on which you may be able to claim and these are covered in more detail in our legal guide What are the grounds for contesting a Will?

Briefly, these include:

  • The Will was not executed in accordance with the legal requirements for a valid Will;
  • The deceased did not have the necessary mental capacity to make a Will;
  • The deceased did not have full knowledge and approval of the contents of the Will;
  • There was a fraud or forgery associated with the Will;
  • The deceased was unduly influenced when they made their Will;
  • The Will does not reflect the instructions given to their solicitor;
  • You were not provided for in the Will and you want to claim for reasonable financial provision from the estate;
  • You believe the deceased gifted you something on their deathbed;
  • You believe the deceased owed you money.

What to do next

If you suspect a Will is invalid, and that you have a claim, you should consult a solicitor as soon as possible to investigate the circumstances surrounding the preparation of the Will.

This is important because:

  • In relation to some grounds for contesting a Will, there is a strict time limit of six months to make a claim from the date the Grant of Probate was obtained;
  • You may have several grounds to make a claim and some may have a higher chance of success than others or may be easier to prove. A solicitor can help you identify these;
  • You may need to take preventative legal action to maximise your chances of success. For example, you may need a solicitor to apply for a ‘caveat’ which prevents the assets of the estate being distributed until the dispute is settled.

What happens next?

Probate actions are complex and there is usually a lot of investigative work to be done before a claim can be formally issued.

Some cases may be ready for a hearing before a judge within 12 months, but if the estate is large and the facts complex, it may to two to three years before a claim is heard.

Each case will have a unique set of facts which has to be pored over in detail before the likelihood of success can be determined.

What happens if a judge declares the Will I am contesting invalid?

If a Will is contested, and declared invalid, any previous Will made by the testator will be admitted to probate instead.

If there wasn’t a previous Will, the estate will be treated as if there was never any Will in the first place which means the rules of intestacy apply.

Intestacy means someone has died without leaving a valid Will and means the estate will be distributed under certain rules with a strict order as to who can inherit. Only direct family will inherit under intestacy, not unmarried partners or friends.

This is a good reason to make sure whether you would benefit or not from any previous Will before pursuing litigation.

For help and advice about contesting a Will, please contact Wards Solicitors’ Probate Disputes team.

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