Challenging a Will: Steps to Contest a Probate Decision

What Does It Mean to Contest a Will?

Contesting a will means legally disputing the validity or the distribution set out in a deceased person’s will. It is a formal legal process that challenges whether the will was properly made or whether it fairly provides for those entitled under the law. Contesting a will can involve questioning the testator’s mental capacity, alleging undue influence, or claiming that the will was forged or improperly executed. Alternatively, it may involve seeking financial provision if you believe the will fails to make reasonable provision for certain dependents under the Inheritance Act 1975.

Who Can Contest a Will?

In the UK, not everyone has the right to contest a will. Typically, the following parties have standing to bring a claim:

• Spouses or civil partners of the deceased
• Children, including adult children
• Other financial dependants who relied on the deceased for support
• Executors named in the will
• Persons named in previous wills or those promised an inheritance but excluded from the current will

These individuals are considered “interested parties” and may have grounds to challenge a probate decision or make a claim for reasonable financial provision.

Grounds for Contesting a Will

Lack of Testamentary Capacity

The person making the will (the testator) must understand the nature of their actions, the extent of their estate, and the claims of those who might expect to benefit. If the testator lacked mental capacity when making the will, it may be declared invalid.

Undue Influence or Coercion

If the testator was pressured, manipulated, or coerced into making or changing their will, the will can be contested on the basis of undue influence.

Fraud or Forgery

Claims can be brought if the will is suspected to be forged or fraudulently altered, or if the testator was misled about the contents of the will.

Improper Execution

A will must be signed by the testator in the presence of two witnesses who also sign it. Failure to comply with these formalities can render the will invalid.

Failure to Provide Reasonable Financial Provision

Under the Inheritance Act 1975, certain dependents can claim if they believe the will does not make reasonable financial provision for them. This includes spouses, children, and others financially dependent on the deceased

How to Contest a Will: Step-by-Step Process

Contesting a will in the UK involves several important steps that must be carefully followed to protect your rights and maximise your chances of success. Below is a clear guide to the process:

1. Lodge a Caveat with the Probate Registry

A caveat is a formal notice lodged with the Probate Registry to prevent the grant of probate being issued for six months. This pause allows time to investigate the circumstances surrounding the will and gather evidence for your claim. If needed, the caveat can be extended for a further six months. However, the executors may issue a ‘warning’ against the caveat, requiring you to justify your reasons to maintain it; failure to respond can result in the caveat being removed and probate proceeding.

2. Request a Copy of the Will

Before probate is granted, only the named executors can view the will. If you are not an executor, you can write to the executors requesting a copy. If this is unsuccessful, your solicitor may advise applying to the court for access once probate has been granted, as the will then becomes a public document.

3. Gather Evidence

Collect all relevant evidence to support your claim. This may include medical records to demonstrate lack of testamentary capacity, witness statements, expert reports, or proof of undue influence or fraud. Gathering this evidence early is crucial, as memories fade and documents may become harder to obtain over time.

4. Attempt Mediation or Alternative Dispute Resolution

Many disputes over wills are resolved through mediation or other forms of alternative dispute resolution (ADR), which can be quicker, less costly, and less adversarial than court proceedings. Your solicitor can help facilitate these discussions to reach a settlement.

5. Proceed to Court if Necessary

If mediation fails or is inappropriate, the dispute will be resolved through litigation in the courts. This step can be expensive and time-consuming, so it is generally a last resort. The court will consider all evidence and make a binding decision on the validity of the will or financial provision claims.