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How to contest a Will

James Watkins - Law on the Web

  1. 18 June 2014
  2. Wills and Probate
  3. 0 comments
Will gavel

Discovering that you have been left out of the Will of a loved one can be devastating. Even though the testator (the person the Will belongs to) may have had their reasons, the omission can feel like a slap in the face.

It could also leave you in a difficult position financially, particularly if you were dependent on the testator in some way.

If this has happened to you, you may want to consider making a legal challenge against the Will. This is not a decision that should be taken lightly, however. This post details some of the things you should consider before you rush into anything.

Should you contest it?

You should seek legal advice before you commit to challenging a Will – it can be an expensive business, and you should only pursue it if you have a legitimate chance of success, as failure could leave you in a considerably worse financial position than if you had done nothing.

Challenging a Will can also stir up plenty of ill-feeling between you and the testator’s other loved ones, meaning that you could ultimately end up damaging a lot of relationships for nothing.

Reasons to challenge a Will

There are a number of reasons why you may wish to challenge the Will of a loved one. Here are a few of the more common reasons.

Lack of provision for children, family or dependants

Certain family members or individuals who were dependent on the testator may be able to challenge the Will if they were left out or did not receive what they consider to be enough, under the Inheritance (Provision for Family and Dependants) Act 1975.

This act makes it possible for you to claim if you are the spouse, civil partner, or child of the deceased. This includes former spouses/civil partners who have not remarried, adult children, and adopted or step-children.

It also includes individuals who had been living with the testator for the two years prior to their death, or had been receiving some kind of maintenance payments from them.

The act also makes it possible for such an individual to apply if there is no Will, and they do not stand to receive anything under the rules of intestacy.

Bear in mind that you only have six months from the issuing of the Grant of Representation to make a claim under the Inheritance Act, so you should act as quickly as possible. You may wish to issue a caveat (see below).

Suspected fraud or forgery

You may believe that the Will does not accurately reflect the testator’s final wishes, due to tampering or fraudulent activity by another party. Unfortunately, trying to proving this in court can be very difficult, not to mention expensive if you are unsuccessful. However, unlike a claim under the Inheritance Act, there is no time limit on when you can make a claim.

Undue influence

Undue influence suggests that the testator included things in his or her Will due to manipulation or deception by another party – one which likely had something to gain by the exertion of this influence.

The testator must have been forced to do something for them to be considered unduly influenced – if someone just persuaded them to include them in their Will, this would not be considered undue influence. As with fraud, it can be quite difficult to prove.

However, you could argue undue influence if you believe that the testator was tricked – for example, if the testator was blind, and had been misled about the contents of their Will when they signed it.

Lack of testamentary capacity

This could be argued if you believe that the testator was not of sound mind when the Will was drafted – for example, if they suffered from dementia towards the end of their life.

To prove this, you would need to gain access to their medical records to use as evidence. Testimony from the person who drafted the Will would also be very helpful.

Issuing a Caveat

If you wish to contest a Will, you will need to issue a caveat – this will prevent any executor or administrator of the estate from obtaining the grant of representation, which they need to carry out probate. Even if you ultimately decide not to contest the Will, the caveat will at least give you and your solicitor some time to consider the matter.

To issue a caveat, you will need form PA8, which is obtainable from GOV.UK. You will need to provide information on the name of the deceased and their last address, as well as the date of their death. You will also need to provide information about yourself.

It costs £20 to enter the caveat, and once it is entered, it will last six months. Your solicitor can help with this.

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