Challenging the validity of a Will
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Challenging the validity of a Will
If you suspect that a Will does not reflect the true intentions of the person making the Will (the testator) and you are considering challenging the validity of a Will, understanding the grounds and procedures for challenging a Will is essential.
Grounds for Contesting a Will
To successfully contest a Will, a potential Claimant must establish valid legal grounds. The most common grounds for contesting a Will include:
- Lack of testamentary capacity;
- Lack of knowledge or approval of the Will;
- Lack of due execution;
- Undue Influence or duress;
- Fraud or Forgery; or
- Rectification and construction.
Alternatively:
If you consider there may be a mistake or error in the Will, as a result of a clerical error or a failure to understand the deceased’s instructions, which means that the will fails to carry out the deceased’s intentions, you may be able to make a claim under section 20 of the Administration of Justice Act 1982 for rectification of the Will.
If the Will is valid, but you feel that you have not been left a reasonable financial provision either by a family member or someone you depended upon, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. You can find further information surrounding in our blog on Inheritance Dispute Claims.
What happens when a Will is contested?
When a Will is contested, it is common for the Executor to take a neutral approach, so that they are not responsible for legal costs. This may also mean administering the estate is significantly delayed whilst the parties involved attempt to come to a resolution, either by agreement or by Order of the court.
What are the steps in contesting a Will?
The first step in challenging the validity of a Will is always to enter a caveat. A caveat is a notice in writing that no grant of probate can be obtained without notice to the caveator. This effectively stops an application for a grant of probate as the caveat has to be removed before any application can go ahead. This provides a period of six months for the concerns regarding validity of the Will to be investigated. It may be extended for further periods of six months.
No matter what ground you are seeking to rely on to contest a Will, a key part of the process of resolving disputes will rely on the evidence provided by the person who prepared the Will in question. The easiest and most cost-effective way to obtain this evidence is to request a Larke v Nugus letter. This requires the person who prepared the Will to make a statement regarding the circumstances in which the deceased gave instructions for the Will and the circumstances in which the Will was executed.
Limitation periods
Although there is no strict time limit to contest the validity of a Will, it is very important to act as quickly as possible as it can become more difficult to bring a claim if the estate assets have been distributed.
If you wish to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision you have 6 months from the date of the grant of probate to either have settled your claim, or issue the claim at court.
If you wish to bring a claim for rectification of the Will under section 20 of the Administration of Justice Act 1982, you have 6 months from the date of the grant of probate within which to issue your claim at court.
Contact
If you believe you may have grounds to contest a Will, or make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, please contact Katie McClean in our Dispute Resolution team, via e. KatieMcClean@rixandkay.co.uk or t. 01273 766 929.
