confused lady wondering whether she can contest a will

Can I contest a will?

Can I contest a will? It’s a question we’re often asked, and a recent case considered the wider question of who has sufficient ‘interest’ to contest a will.

To challenge a will, you must be able to show that you have an ‘interest’ in the estate of the deceased person – usually close relative or someone who has been treated as such. In a recent case, Randall v Randall [2016] EWCA Civ 494 the courts decided that someone with a far more tenuous connection to the estate concerned could challenge the will, because without this legal avenue, he had no other way of seeking a solution to his problem.

Can I Contest a Will – The Facts

When a couple divorced, it was part of the divorce settlement that if the wife (W) inherited more than £100,00 from her mother (on the mother’s death), W would keep £100,00 and the remainder would be split equally with her ex-husband (H). In the event, the mother’s will left exactly £100,000 to W and the balance – estimated at £150,000 – to her grandchildren. H sought to challenge the will on the grounds that it was a forgery and had not been properly executed, but the High Court agreed with W that H did not have sufficient interest to bring the claim – he was neither a beneficiary under the will nor would stand to gain under intestacy rules if there were no will.

The Court of Appeal heard the appeal against this decision by H and decided that

  1. If H was unable to bring the claim, there would be no effective route for him to bring his claim against W and against the validity of the will
  2. The question of whether H did have an interest was a procedural matter rather than a matter of substantive law
  3. The Civil Procedure Rules have an overriding objective to ensure cases are dealt with justly and proportionately – and “justice in the general sense” required that H should be allowed to bring his claim.

Can I Contest a Will – An ‘interest’ in the estate

The facts of this case were fairly unusual. In general, the question of who has ‘an interest in the estate’ which would enable them to contest a will – for example on the grounds that it had not been properly executed, or that the deceased did not have mental capacity when he or she made the will – is fairly straightforward. The people who are likely to have an interest in a deceased’s estate, and would therefore take action to contest a will, are the immediate family – spouse or civil partner, children (including adopted children) and parents if they are still alive, and then more remote relatives – grandparents, aunts and uncles. These are essentially, the same people who would have inherited had the deceased not left a will and died intestate.

If there is an earlier will in existence, which differs to the most recent will, people who might have benefited under the earlier will but are left out of the most recent will may try to contest the will. Equally, someone who was promised something by the deceased when he or she was still alive, but this is not mentioned in the will as a specific gift, or is given to someone else in the will, may bring a challenge.

Can I Contest a Will – A pragmatic approach to an ‘interest’

In Randall v Randall, the Court of Appeal indicated its willingness to take a pragmatic approach to the question of who has an interest in an estate, and hence who can contest a will, to ensure that justice is done.  It isn’t yet clear whether this case will have wider repercussions, but it’s interesting to note that the judge found that if the challenge was being brought in the general jurisdiction of the court (not under the probate jurisdiction) he would certainly have had an interest – H was “not a mere busybody. He [had] a real interest in challenging the validity of the will”.

Ultimately, the question of whether you have sufficient interest to challenge a will depends on the facts and on your relationship with the deceased. As difficult as it may seem, your best approach is to take specialist legal advice early on to establish whether you can contest a will, and your prospects of success.