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Contesting a will

This information only applies in England and Wales.

Sometimes a beneficiary of a will - or someone who believes they should be a beneficiary but has not been included in the will - might decide to challenge the validity of part or whole of a will. There are specific grounds for challenging a will and certain time limits can apply.

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Lack of valid execution

If the Last will and testament has not been made properly, as a result of failing to follow the correct procedure, this can lead to it being rendered invalid. For example, if witnesses were not present when the testator signed their will, it can be challenged. 

Lack of testamentary capacity

With people living longer and dementia on the rise, there is more potential for a will to be challenged on the grounds that the testator lacked 'mental capacity' when writing their will. Lacking mental capacity is defined, under the Mental Capacity Act 2005, as the inability for someone to make a decision for themselves due to an impairment of the brain. This can apply to dementia, brain injury and certain mental illnesses.

Lack of knowledge or approval, forgery and fraud

If a will has been drawn up by a third party, and the testator signs the will without full awareness or understanding of its contents, it can be deemed invalid.

Similarly, if a will is forged or has been affected by fraudulent statements, this will no longer constitute an enforceable legal document.

Undue influence

If the person making a will (ie the testator) was coerced to draft their will in a certain way or made changes to their will under duress, this can lead to it being rendered invalid. However, this type of claim can be difficult to prove.

Inheritance Act 1975

Even if there is no challenge of the validity of a will, it can still be contested under the Inheritance Act 1975. This allows dependents of the deceased (including cohabitees) to make a claim against the estate if they can prove that they were financially dependent on the deceased and were not sufficiently provided for in the will.

The first step will usually be to enter a caveat (currently costing £3) which stops the probate process from going ahead while the dispute is ongoing. It will then be down to negotiation, alternative dispute resolution (eg mediation) or court proceedings to resolve the issues.

If you are considering contesting a will, you should Ask a Lawyer for advice as soon as possible, to discuss the specifics of your claim.

Any claims made under the Inheritance Act 1975 need to be made within 6 months from the date that probate was granted.

Any beneficiaries under a will who wish to contest part or whole of the will, have up to 12 years from the date of death.

If the nature of the claim relates to fraud, there is no time limit.

If you have been notified of a caveat that has been lodged, the first thing you can do to challenge this is to issue a 'warning'. There is no fee for the warning. A caveat only remains in place for 6 months, unless it is renewed.

The personal representative (ie the person that administers the estate) can, however, also take steps to try and have it removed. To challenge a caveat, the personal representative must lodge a 'warning' at the Probate Registry. See this list of UK probate registries.

If you're not the executor/executrix of the will (an executor/executrix is someone who carries out the administrative duties and tasks in making sure the testator's wishes are followed according to the will), then you will need to order a copy from the probate court (if the deceased's will was filed with the courts). Once a grant of probate (or letters of administration) has been issued, a will becomes a public document and anybody can apply to have a copy of the will.

Once the testator has passed away, if that will has been filed with the probate court of the county the deceased resided in, the court will open the will and it becomes public record. The best way to view the will is to get the probate court file number. The executor can give you this information.

Getting a copy of a will is possible by paying a copying fee. Some courts will also provide you with a copy by fax or mail of a will on file. A certified copy of a will is a document that has been stamped and certified by the court to be an exact copy of the official document. You can search for a copy by using the government's Find a will or probate document webtool online.

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