Contesting a will

Reasons for contesting a will may include suspicion that the will does not reflect the true intentions of the person making the will (the ‘testator’), or perhaps the will hasn’t been followed (‘executed’) correctly In either instance that will may be invalid and could be contested.

If there is no will, or the only will that exists is determined to be invalid, the estate (the possessions and assets, including property, of the person who has died) will be distributed in line with the rules of intestacy – this is a hierarchy of relatives detailing who gets what from an estate.

If you believe you have grounds to contest a will, we strongly advise you to seek expert legal advice early on. Understanding the evidence needed to contest a will can be pivotal in making a successful
claim.

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Click here to read more about funding contentious probate disputes; payment arrangements offered by Wright Hassall; and after the event insurance.

The grounds for contesting a will include: 

1. lack of testamentary capacity
2. undue influence or coercion
3. lack of knowledge and approval
4. Wills Act 1837
5. and forgery and fraud.

What happens when a will is contested?  

Contesting a will in the UK is a complex process; we’ll help identify the best way to address your concerns about the execution of a will including mediation and, where appropriate, taking the matter to court. Understanding the success rate of contesting a will in the UK can help set realistic expectations.

The first thing to do is to establish the will has been properly signed and witnessed in order to make it valid. If you suspect that it may not be valid, you can contest it on the grounds of its validity.

When a will is contested, the executor(s) normally takes a neutral approach so they aren’t responsible for legal costs if there are concerns about how they have handled the estate. This may mean administering the estate is delayed significantly while the parties involved attempt to come to a friendly resolution or until the matter is resolved by an Order of the Court.

What are the grounds for contesting a will?

There are generally two bases for contesting a will; either the will itself is invalid, or it fails to make ‘reasonable financial provision’ for a family member or someone who was financially maintained before their death.

There are a few grounds on which you may be able to question whether the will is valid. In legal terms, the grounds for contesting a will are:

1. lack of testamentary capacity
2. undue influence or coercion
3. lack of knowledge and approval
4. Wills Act 1837
5. and forgery and fraud.

The validity of a will can be contested if you believe it was created under one or more of following conditions:

The person who has died did not have sufficient mental capacity at the time the will was drawn up

This is called a lack of ‘testamentary capacity’. The law says that, at the time of drawing their will up, the person must be of “sound mind, memory and understanding.” This means that the person making the will must:

• Understand what they are doing and what effects those actions will have
• Understand the full extent of what they are distributing
• Be able to appreciate the effects of including or excluding certain people from their will
• Not have a ‘disorder of the mind’  

If you want to know more about contesting a will on the grounds of lack of testamentary capacity, you can read our guide here.

The person who died did not have sufficient knowledge and approval

For a will to be valid, a person must have understood and approved the contents. Knowledge and approval are normally presumed when the will is executed correctly and the person had the necessary capacity, but there are a few circumstances where the Court may require evidence to prove knowledge and approval was given if there are any disputes:

• The person making the will was deaf and/or dumb (couldn’t speak)
• The person making the will could not speak and write, or was paralysed
• The person making the will was blind or illiterate
• The will was signed by someone other than the person making the will at his or her instruction

When there is suspicion that the person making the will did not know or approve of the will, the people who believe the will to be valid are the ones who have to prove it is so.

Undue influence

Someone else interfered with the creation of the will, meaning they exerted undue influence on the distribution of assets against the individual’s desire. 

If someone coerces or forces someone into changing their will for the coercer’s benefit, this is called undue influence. It can be very hard to prove, however, as the law doesn’t presume that people in a position of power over the person who has died being named in the will is the result of undue influence.

Someone exerting undue influence can include physical violence, purposely giving inaccurate information, or verbal bullying, but it can also include asking incessantly – what matters is that their wishes overpowered those of the person who has died.

It can be particularly difficult to demonstrate that a will is invalid because of undue influence; exerting pressure (like “but we’re family”) or appealing to moral reasons (like “remember all the things I have done for you”) to be included is not normally considered undue influence unless it overpowered the will of the person who has died.

The will is a forgery or is fraudulent

If either the entire will or the signature of the person who made the will is forged, or the content of the will is fraudulent, then the will is invalid. A fraudulent will is one that includes wishes against the person who has died; it is similar to undue influence but does not require coercion. These grounds can also include beneficiaries (someone who would or does benefit from the will) or non-beneficiaries destroying versions of the will for their gain.

The will has not been executed properly, meaning the estate has not been distributed in accordance with the person’s wishes

A valid will complies with Section 9 if the Wills Act (1837), and must:

• Be in writing and signed by the person making the will.
• The person making the will must have signed it with the intention of creating a valid will.
• Two people must witness the will maker’s signature. Those witnesses must either be present when the will maker signs or, the witness must be told by the will maker, that is his/her signature.
• The witness then either signs having seen the will maker sign, or signs in the knowledge that it is the will maker’s signature on the document and that the will maker did signed it, with the intention of creating a valid document.

Reasonable financial provision

It may also be possible to seek reasonable financial provision if you depended financially upon the person who has died but no such provision has been made in the will, under the Inheritance (Provision for Family and Dependants) Act 1975. The Act also sets out who is entitled to make a claim on these grounds; normally, spouses or civil partners, cohabitants of two or more years, children, and people who can show they were being supported financially by the person.

Costs of contesting a will

Contesting a will can, unfortunately, be a costly process. Because of the variation in work required from case to case, it’s hard to give an average cost of contesting a will.

As is usual with litigation, the court normally decides who bears the cost – although it is most likely that the losing party will pay for the winning party’s costs (in addition to their own). Because of this, it can’t be assumed that costs will be met by the estate. There are a couple of circumstances when the court may make an alternative order as to who pays what:

• If the person who made the will, or the people who are interested in what’s left of the estate, are found to have caused the legal challenge, then the costs may be taken from what is left of the estate.
• If the court thinks that an investigation into the will, then each party will cover their own costs.

Because of the potential costs, it’s crucial to assess the merits of a claim and the chances of proving successful before any action is undertaken. If you're considering contesting a will after probate, understanding the financial implications is essential.

But, how much does it actually cost to contest a will?

The amount it will cost to contest a will depends on how quickly the dispute settles. For example, if following an initial letter, it is accepted that the will is invalid, the likely legal costs will be in the region of £500 to £1,500 plus VAT. However, if, an initial letter does not settle the dispute; the parties should then engage in mediation or some other form of without prejudice conversations. The cost of progressing to this stage is often in the region of £7,500 to £10,000 plus VAT. 

After that, if a mediation or without prejudice conversation is not successful, the next step would be court proceedings. The costs of the claim would escalate to a sum in the region of £15,000 to £20,000 plus VAT. If the matter proceeds to a final trial, costs can increase to amounts over £100,000. The most expensive part of any litigation is the trial.

However, to put the above into perspective, approximately 50% of cases settle before proceedings are issued, and only around 2% of cases proceed to a final trial. It is essential in all inheritance disputes that the issues are identified at an early stage, and all parties engage in mediation or without prejudice conversations to try and resolve matters to reduce the costs. It is therefore important that an experienced and qualified solicitor is instructed at the outset who specialises in contesting wills. 

Who pays to contest a will?

Before embarking on contesting a will and instructing a solicitor, you should first check any insurance you may have which may cover legal expenses. For example, some bank cards and home insurance include such insurance. If you do not have legal expenses insurance, you should speak to your solicitor as to whether they will act on your behalf using a conditional fee agreement (more commonly known as a no win no fee agreement). Please be aware while such agreements cover your own costs, they do not include the opponent’s costs, if you lose the claim. If you are not able to fund your claim by either legal expenses insurance or a conditional fee agreement, a solicitor will often ask for their fees to be paid on an hourly basis. 

Whenever contesting a will, if your claim proceeds to trial, the standard order is that the winning party has their reasonable costs paid by the losing party. At the outset of any case, a solicitor should advise their client about after the event insurance to cover the opponent’s costs, if their claim is not successful. 

It is important to seek legal advice from the outset to try and minimise any pitfalls regarding costs involved in contesting a will, as it can be costly. 

Why is it expensive to contest a will?

Contesting a will can be a very complicated process requiring expert evidence. For example, if the deceased lacked mental capacity when executing the will, medical expert reports will inevitably be needed. If fraud is alleged, a forensic handwriting expert is often required. Inheritance disputes regarding the value of the estate often occur which require surveyor’s reports. Further, in most disputes involving contesting a will, emotions are often running high, and parties inevitably do not see “eye to eye”. This can cause will disputes to proceed to court, which is the most expensive part of litigation. If court proceedings are issued, it is standard practice for a barrister to become involved and to draft the necessary court papers and to represent a client at any future hearings. 

To try and minimise costs, it is imperative to instruct a solicitor who specialises in contentious probate at the outset of a claim so that the issues can be identified and the parties can seek mediation at the first possible opportunity. 

Can I get legal aid to contest a will?

Legal aid can help meet the costs of legal advice, mediation and representation in a court or tribunal if people cannot afford to pay for legal fees, and the case is eligible for legal aid. However, not all legal advice is covered by the legal aid scheme, and unfortunately, these sorts of cases are not eligible. That said, if there are reasonable prospects of success, it is possible to instruct solicitors on a ‘pay at the end’ basis (i.e. from inheritance) or using ‘no win no fee’ agreements if funding is a problem. It may also be possible to claim on existing insurance policies for the cost of legal advice or obtain insurance. 

Contesting a will after probate

It’s important to act as quickly as possible if you think you may have grounds for contesting a will. This is because it’s easier to notify the executor(s) of the will of a claim before anything is distributed. If a will may be invalid, a ‘caveat’ can be entered against the state to prevent a Grant of Probate being issued.

It is technically possible to contest a will after probate has been granted, but this can result in practical difficulties if assets have already been distributed.

If you have any queries please contact either Martin Oliver or Katie Alsop.