Jen Workman2020-11-05T11:42:09+00:00November 5th, 2020|
7 mins read
When a loved one dies, you will have a number of legal responsibilities to deal with. One of the major ones is the need to locate the Will and administer the estate according to the wishes laid out in it.
In most cases, this practice is reasonably straight-forward. Families rarely find anything particularly surprising in a Will; it’s rare for someone who could reasonably expect a bequest to have been excluded completely.
However, there are occasions where family members do not agree with what has been written in a Will.
This might be because the family considers the Will to not be in line with what the person would’ve wanted at the time of their death. It may also be because a member of the family believes they have been treated unfairly in the Will, regardless of what the rest of the family think.
Who can contest a Will?
It’s important to recognise that not everyone has the right to contest a Will. You will only be able to start this legal process if you had a certain type of relationship with the person who has died. This includes if you were a family member, if they treated you as if you were a family member, if you were in a cohabiting relationship with them or had been in the past, or if you were mentioned in a current or previous Will.
You also need to have a clear reason to make a claim against a Will. For example, you don’t have any legal right to dispute what is written in a Will simply because you don’t like it.
You believe the Will was written as a result of undue pressure
You believe the person wrote the Will when they no longer had the mental capacity to do so
You believe the person who wrote the Will hasn’t adequately provided for an individual they are legally obliged to (such as a spouse or child they were supporting financially before their death). This type of claim is known as reasonable provision.
How long you have to make your claim depends on what kind of claim it is. As a general rule, it’s best to act quickly in these situations and seek legal advice as soon as possible. Though it is possible to contest a Will once probate has been granted and the estate has been distributed, it can be more straight-forward to take action before this happens.
Download our free guide to Challenging A Will
This free ebook has been put together as a guide to help you understand the process of challenging a Will.
A dispute about a Will can lead to a very long, drawn out court process. This is likely to be stressful and expensive. You should really only consider a legal contest as a last resort.
In cases where it is not possible to resolve the situation within the family, your next step would be to seek advice from a solicitor who specialises in contentious probate. Contentious probate is the legal name given to the process where there is a dispute about a Will.
The right way forward will then depend on what the circumstances are. If there is a consensus among family members that the Will should not be deemed valid, perhaps due to lack of mental capacity, then your solicitor will be able to work with you to put together a case to take to court.
If the Will dispute is related to a disagreement between beneficiaries, in the first instance your solicitor will usually recommend mediation.
Mediation is where all parties are brought together with an experienced legal mediator to try and reach a solution everyone is happy with. If you are able to reach a solution in this way, it is often best for everyone involved.
Not all disputes can be resolved through mediation. If negotiations break down or reach an impasse, you will need to work with your solicitor to build and submit a formal court claim.
What happens when a dispute goes to court?
Cases of contentious probate are heard in civil court. There is no jury present in this kind of case. Instead, the judge will hear all the evidence available and then make a ruling on what they believe is the right decision.
There are a number of different types of decision a judge might come to in these cases.
They may decide that the Will is valid and that the executors should continue to administer the estate in accordance with it.
They may decide to remove an executor from a Will or appoint a new one.
They may decide to declare a Will valid even if there is an issue with its validity, for example; if the person who wrote the Will signed it in the wrong place. (This is called rectifying a Will)
They may decide to declare the current Will invalid in favour of an earlier one.
They may decide to declare a Will invalid and rule that the estate should be distributed on the basis of the intestacy rules.
They may decide to change the terms of the Will entirely.
If you are considering contesting a Will, an experienced solicitor will be able to advise you on your specific case and what the likely outcomes might be.
How Roche Legal can help
We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with: