legal documents for consideration

Top Tips for Contesting a Will

What are the potential pitfalls?

• To contest the legal validity of a Will you need to have an interest in the outcome of your dispute – for instance, if you prove the Will is not valid, you must be a beneficiary under a previous valid Will or if there is no previous Will by the rules of intestacy (under which in general you will only be a beneficiary if you are either married to the deceased or one of his children)

• There has to be an estate – whilst we often hear it said that the Will is being challenged on the ground that it is a matter of principle, given the financial cost associated with such a challenge (e.g whilst you might instruct Solicitors under a no win no fee arrangement there could still be a financial penalty if you lose, on the basis that you cannot obtain ATE insurance – and you won’t get ATE insurance if there is no estate), you cannot proceed with such a claim unless you don’t care about the potential cost and in truth it is unlikely a no win no fee Solicitor would help you either

• There may not be an estate if the deceased’s property was owned jointly with another – without going into unnecessary legalese, there are two types of joint ownership, one of which gives the survivor of two joint owners the entirety of the property outright, notwithstanding the contrary wording of a deceased’s last Will

• You might win a claim against the legal validity of a Will but still receive nothing because there is someone who can bring a claim for financial provision against the estate under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 by which he or she is entitled to the bulk of the property or perhaps a claim that the property of the deceased is otherwise theirs because in the past it was promised to them as a result of which they incurred significant losses perhaps in working for nothing on a farm owned by the deceased or improving his property at their expense (the latter is sometimes called a claim of “Proprietary Estoppel”

What steps should you take to contest a will?

• After deciding that you can actually contest a will (see above), consider the following:

1. You can only start your claim once the person making the Will has passed away.

2. Evidence – the best evidence is the independent evidence of professionals (for instance doctors who treated the person who made the Will); is there likely to be any?

3. Evidence – even better perhaps, the deceased might tell you that he or she didn’t intend to make the Will in the terms that it was, might say what they wanted instead and why he or she did what she did – you have your telephone so record this.

4. Evidence – keep key letters, cards, text and emails and print them.

5. Evidence – if you are contesting a will because you have health issues and financial needs (in other words you are bringing a claim for financial provision under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975, think about the following:
• There is a time limit of 6 months to bring this claim from the date of the Grant of Probate
• You will have to produce evidence of your health and financial issues
• If you are an adult child, you should try and show that you have a “moral claim”, that is a claim that unfulfilled promises were made to you by the deceased in relation to his or her estate, you provided care over many years to the deceased or some other reason which might (you suspect) assist in establishing a moral claim (again you will need evidence)

6. Evidence – if you are contesting a will because you were promised a share of the deceased’s property in consequence of which you (for instance) worked for nothing (or very little) on his farm and/or contributed to cost of running or maintaining his property, then again, you will need to provide evidence of this.

If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat.