Contesting a will

Are you looking to contest a will or are you defending a claim from someone looking to contest a will? Whatever the problem, our solicitors can help.

How to contest a will

It may be possible to challenge a will on one or more of the following grounds:

  • lack of “testamentary capacity”;
  • lack of valid execution;
  • lack of knowledge and approval;
  • undue influence;
  • fraud or forgery; or
  • rectification and construction claims.

Alternatively, if you have been left out of a will, or the provision left for you in a will is insufficient to meet your needs, you may be eligible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

See also:  Grounds for contesting a will

Who can contest a will?

Anyone who is likely to benefit from an earlier will or on intestacy (where there is no earlier will) is able to contest a will.

Alternatively, if you were meant to benefit under a will but, due to a failing by the professional preparing the will, you did not, you may be able to make a professional negligence claim against the professional adviser.

If property is given away in a will, which was either gifted or promised to you during that person’s lifetime, you may also be able to dispute this.

What are my chances of successfully contesting a will?

Our expertise in this area means that we can advise if you have a possible claim to contest a will or if you need to defend a claim to dispute a will.

Time limit for contesting a will

Time limits to contest a will depend on the specific circumstances of each case. However, in any dispute over a will, the sooner you act the better.

Contesting a will is more difficult if probate has already been obtained and the estate has been administered. The court is also able to disallow a claim for contesting a will if there have been significant delays in bringing the claim forward, unless there are reasonable justifications. The key is to act fast and seek legal advice as soon as you can.

Claims to rectify a will, or for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, have a time limit of six months from the grant of probate or letters of administration. The court does have power to allow an extension, but only in exceptional circumstances.

Case Studies

Hugh James advise in estate with assets in foreign jurisdictions where domicile was disputed and where there are minor beneficiaries

Roman Kubiak acts for the husband of the deceased in relation to claims under the Inheritance (Provision for Family and Dependants) Act 1975 and to set aside the deceased’s last will on the grounds of lack of capacity and lack of knowledge and approval.

This matter is particularly complex as the deceased and her husband were resident in Switzerland at the time of death and the deceased’s assets are split between France, Switzerland, Austria, Jersey and England.  As such, it has been necessary to establish the legal position abroad, to ensure that the claims brought in the UK marry up with any potential succession rules in each of the above jurisdictions, to consider the impact of forced heirship and matrimonial property regimes and tax considerations.

Further, the grant of probate was extracted on the basis that the deceased died domiciled in Switzerland, potentially excluding the husband from bringing a claim under the Inheritance Act.  This has been challenged and proceedings have been issued in the Royal Courts of Justice.

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