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Contesting Wills – the Practicalities

You may feel aggrieved by the provisions of a will – but what are the practicalities of contesting wills in the UK?

In the wake of the death of a relative, a close friend, there are many things to contend with, not least your grief. Notwithstanding how difficult the weeks and months that follow, there are many practical steps that need to be taken when someone close to you has died. Disputing the will may not be at the top of your list, but in certain circumstances, it may become apparent that this is necessary. Here we take some time to look at the practicalities of contesting wills.

Do you have ‘an interest in the will’?

If a will is to be contested, there are only a certain number of people who will be able to contest a will. These are broadly defined as people with ‘an interest in the will’ and usually correspond with the people who would inherit if the testator (the person who made the will) had died without making a will at all. The intestacy rules include the testator’s spouse, and children, his or her parents, and then more remote blood or adoptive relatives. More recently, the case of Randall v Randall found that the ex-husband of the testator’s daughter had sufficient interest to challenge the will.

Can you afford to challenge a will?

You may be concerned that taking legal action to seek justice may be too expensive for you to continue. While legal proceedings can be costly, we are usually able to offer our services on a no win no fee basis which means that you will have nothing to pay if your claim does not succeed. If your claim does succeed, we will seek to recover your legal costs from the estate or from the person who opposed your claim.

What will you gain from contesting a will?

If you bring a claim to contest a will, you will be challenging the validity of the will in its entirety. If you win your claim, the end result is that the will is set aside, and the estate concerned will be distributed according to the most recent previous will that was made – or, if there is then no will, according to the intestacy rules. This may mean that you are worse off than if the will stands. It’s worth taking legal advice about what the position will be should your claim succeed.

Have you left it too late to contest a will?

Depending on the type of claim you are thinking of bringing, certain time limits apply.  A claim for maintenance under the Inheritance (Provision for Families and Dependants) Act 1975 has to be brought within 6 months of the grant of probate. It may, in some cases, be possible to extend the time limits, but this is not something you can rely on. Other claims, challenging the validity of the will don’t have a fixed time limit. However, the longer you leave a claim, the less likely it will be that you will be able to gather sufficient meaningful evidence to construct a strong case. In addition, the estate may have been distributed and the assets dispersed. For these reasons, it is always important to act without delay.

Do you have sufficient evidence to contest a will?

You may have a strong suspicion that all is not as it might seem as regards the will concerned, but without any evidence, you will find it very hard to succeed in your claim. In many cases, there is a ‘presumption’ that the will is valid, so there needs to be strong evidence to defeat this presumption and have the will set aside. We looked at the evidence you need to contest a will in this recent blog.

Taking the decision to contest a will is one that must be made carefully, looking at all the factors in play, and with the benefit of sound legal advice. If you are considering your position following the death of a loved one, we can talk through the issues with you, help you understand whether you may have a claim, and how likely it is to succeed.