Challenging a will – a point by point guide in will contest claims
1. You can roughly divide will contest claims into two distinct types.
2. The first type of claim is one where you dispute the validity of the will because for instance, the person making it was coerced, didn’t have mental capacity or it was not properly signed and witnessed (or even because it was forged!).
3. The second type is where you are a close relative, spouse or dependant and have been left insufficiently provided for and are not then disputing the will was valid.
4. There is no time limit for the first type where you contest the validity of the Will.
5. There is a time limit of six months from the date of the grant of probate where you are claiming financial provision and not disputing the validity of the will.
6. You should at least consider entering a caveat for the first type where you dispute the validity of the will but not for the second. However, you must ascertain in this type of case whether, should you successfully dispute the validity of the will, you actually have an interest in the outcome.
7. What do we mean by having an interest in the outcome? This means in effect that should the will be invalidated, you will inherit at least a part of the estate because of the existence of an earlier valid will, or under the rules of intestacy where there is no previous valid will (where you are therefore one of the deceased’s nearest living relatives). If you don’t have this “interest” you cannot pursue your claim.
8. A Caveat stops the grant of probate whilst your claim is considered. This means the estate cannot be administered whilst your caveat is in place. However, if you enter a caveat you must take legal advice as there are potentially serious financial consequences if you do this where you have no real basis for your claim.
9. In general, if your claim falls within the second type, there are favoured applicants, usually the deceased’s spouse or dependant. An adult child is not particularly favoured where that individual is comfortably off or capable of working – a court is reluctant in general to interfere with the deceased’s wishes by his or her will and will look unfavourably on an applicant to intends to use this type of claim as a means of obtaining a lottery style award or to fund an extravagant lifestyle.
10. In all cases you should where possible consult a suitably experienced lawyer – claims of this nature are littered with pitfalls and traps for the unwary.