Will disputes

In the UK, we are free to leave their assets to whoever we like, subject to certain safeguards. However, it may be possible to contest a Will on one of the following grounds:

Lack of testamentary capacity

For a Will to be valid, the person making the Will must be of sound mind and be able to understand the meaning and effect of making a Will, the extent of their assets, and the consequence of including or excluding someone from the Will.

They must not suffer from any “disorder of the mind” which may cause them to make gifts that they otherwise would not have made.

A Will may be open to challenge if one or more of these requirements are not met.

Lack of knowledge and approval

A Will can be disputed if the testator was not aware of the contents of the Will or did not have the knowledge required to approve the Will. This can happen if the Will is very complicated, if the person is very ill, hard of hearing or unable to read.

Undue Influence

A Will can be challenged if the testator is unduly influenced or coerced by someone into making or changing a Will in their favour. The pressure must be such that it overpowers the testator’s own decision-making.

Fraud

A court can invalidate a Will obtained by fraud, for example if the document or the signatures were forged, or if a person was deceived into making a Will.

Incorrect execution

A Will is a formal legal document and must comply with section 9 of the Wills Act 1837. For a Will to be legally valid, it must be:

• in writing
• signed by the person making the Will (testator), or by another person in their presence and by their direction
• in the presence of two or more independent witnesses present at the same time, and who must attest and sign the Will

A court can set aside a Will that has not been properly executed. The result would be to revert to an earlier properly executed Will if there is one, or intestacy.

If you receive little or nothing under a Will, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if:

• You are their current spouse, or former spouse if you have not remarried
• You are their current civil partner, or former partner if you have not entered into another civil partnership
• You are a child of the deceased, of any age
• The deceased treated you as their child, such as a step-child
• You were in a relationship with the deceased and were living with them for the two years immediately before they died
• You were financially dependent on the deceased immediately before they died

A court has wide discretion to alter the distribution of money and property so that a successful claimant receives reasonable financial provision from the estate.

If someone dies without a Will, their assets will be divided between surviving blood relatives under the rules of intestacy, which may not be what that the person would have chosen when they were alive.

Intestacy rules do not provide for any other relationships, such as a long-term partner.

If you find yourself in this position, you might be able to bring a claim under the Inheritance (Provision for Family & Dependants) Act 1975. This Act allows eligible applicants to bring a claim against an estate where reasonable financial provision has not been made for them either under a Will or a person’s intestacy.

If you have grounds to challenge the validity of a Will, it is important to seek specialist legal advice immediately, preferably before a probate is granted. You can enter a caveat at the Probate Registry for a small fee to prevent the issue of a grant and distribution of the estate while preliminary investigations and enquiries are carried out.
If you make a claim under the Inheritance (Provisions for Family and Dependants) Act 1975, you have a time limit of six months from the date of a grant of probate or grant of letters of administration to issue a claim in the courts.

The court has the power to extend the time limit but only in exceptional circumstances.

Alternatively, the parties involved can agree to enter into a “standstill agreement” to give themselves more time to try and resolve the claim. If the claim cannot be settled by agreement, a “standstill agreement” would prevent your claim from being defended on the basis that you have issued court proceedings outside the six-month time limit.

You can bring a claim after probate is granted, but the process would be more expensive and difficult, you would have more hurdles to overcome and the estate may have been distributed to beneficiaries entitled under the Will or intestacy.

It is difficult to predict with any certainty the financial costs of challenging a Will. Much would depend on the complexity of the case, how vigorously a claim is defended, how many parties are involved, and how protracted the case becomes.

After the preliminary consultation, we will provide you with a cost estimate, usually broken down in stages. We also have a range of funding options for clients who have a worthwhile case but lack the resources to fund their legal costs.

A no contest or forfeiture clause states that if a beneficiary challenges the Will, they will forfeit their inheritance. If you contest a Will containing a no contest clause and your claim is unsuccessful, you will lose your entire legacy. However, if your challenge is successful, the no contest clause will have no effect.

You should always check whether there is a “no contest” clause in the Will you wish to content before deciding whether to proceed with your claim.

Whether you are the personal representative/executor of the estate or a beneficiary, you should get in touch with one of our specialist Wills dispute solicitors immediately for advice on the nature of the challenge, its merits and how to maximise your chances of securing a good outcome.

The time it takes to resolve a Will or probate dispute varies greatly depending on the nature of the case and how vigorously the claim is defended. A dispute that can be settled by agreement or mediation will conclude sooner. A claim going all the way to a final court hearing may take a year or longer.

If someone promised you an inheritance of land or property but failed to honour that promise in their Will, you may be able to bring a claim against the estate under the principle of Proprietary Estoppel.

There are three elements that you need to prove, namely:

• the deceased made a promise or representation to you
• you relied on that promise
• you suffered a detriment as a result

If you are considering making a claim based on such a promise, you should contact us for a more in-depth discussion.

You will usually only have to go to court if all other avenues for resolving the dispute have been exhausted.

At Clarke Willmott, we believe it is always in our client’s best interests to resolve inheritance disputes, contested Wills and other probate claims through negotiation and mediation if possible, and avoid the delay and costs of lengthy court proceedings.