How to contest a will

Check out our handy guides for more help contesting a will What is the timeline for contesting a will? What happens when a will is contested?​​ How much does it cost to contest a will? Contesting a will after probate​

 

On what grounds can you contest a will?

1. The Validity of the Will

There are a number of reasons that a will may not be valid. If you believe that a will was not produced, signed, or witnessed properly, you may be able to contest it under the Wills Act 1837. A will can also become invalid if it was not executed correctly. 

2. Testamentary Capacity

If the deceased was not of sound mind or lacked the physical capability to produce, sign and understand their will, then there could be a case to contest it. Mental illness or dementia are the most common examples of reasons for disputes the testamentary capacity of the deceased.

3. Claims for financial provision

Claims over financial provision occur when someone who was financially dependent on the deceased is left out of their will. This common type of dispute usually involves the children or the spouse of the deceased. 

4. Undue influence

This arises when the will of the deceased was made or altered under the influence of someone else. If you think that there was any pressure on the deceased during the writing of their will, you could have a case against it. 

5. Forgery or fraud

You could also have a case to contest a will if you believe that forgery, fraud, or foul play might have been involved. 

How much does it cost to contest a will?

The reasons above are just some of the common causes for contesting a will. If you think that you might have a case, you should seek legal advice as soon as possible. There are a number of factors to consider if you're thinking of starting the process:

• The cost of contesting a will depends on how complex the case is. Influential factors include the reason the will is being contested, the number of parties involved and the types of evidence required for the dispute. 
• The length of time for a case to be settled is also a big factor in the cost. 
• Many types of disputes can be settled before they come to court. But if an agreement cannot be reached, be aware that court fees can be fairly expensive. 
• You must also be aware that any legal fees do not automatically come out of the estate of the deceased. Costs are usually determined by the court and paid for by the losing party. In some circumstances, the fees could be deducted from the estate. 
• Another factor that could complicate a dispute is if the deceased lived or held any assets abroad. 

While it is not possible to predict exactly how much contesting a will could cost, a solicitor would often be able to offer you several price structure to help you deal with the financial burden of an inheritance dispute. 

How do you contest a will?

If you want to contest a will be aware that there is often a time limit. You usually have six months to begin a claim once the executor of the estate in question has been given a Grant of Probate (see the legal right to manage the estate). If you think you have the grounds to contest a will, you should seek legal advice immediately. 

Contrary to popular opinion, you do not have to be a direct relative to have the legal right to start an inheritance dispute. You could be a partner, a close friend, or someone that was dependent upon the deceased. 

As part of the process of contesting a will, you will have to acquire a copy of the will from the executor of the estate. However, if they are not willing to share a copy, a solicitor can help you apply for a caveat - you can then lodge a formal claim to court. 

Contesting a will in Scotland

Contesting a will in Scotland is slightly different from the rest of the UK, and it can be more difficult. The main difference is that the Inheritance Act of 1975 does not apply in Scotland. This act is concerned with providing provision for family, spouses or other dependents who would suffer without provision from the will.

The grounds that are valid in contesting wills in Scotland are:

• Incapacity
• Facility and circumvention
• Undue influence
• Fraud

Another clear difference in Scotland is ‘protection from disinheritance’ or ‘forced heirship’ which protects an automatic entitlement that children or a spouse should receive in a will. These are called ‘legal rights’. However, legal rights do not determine how much a child should receive from a will if they do not feel they have received enough. Legal rights do also not apply to land and buildings – these can be passed on to anyone, not just direct descendants.

If you are concerned about probate and think you may need to contest a will, you can search our database for highly qualified, specialised probate solicitors.