Contesting a will - grounds, process and risks

Who can contest a will?

Not everyone has the legal standing to challenge a will. Those who can contest include :-

• Beneficiaries named in the current will - these individuals have an interest in ensuring the will is valid and properly executed.

• Those entitled under intestacy rules - family members who would inherit if there was no will can challenge the existing will.

• Financial dependents - anyone financially maintained by the deceased may have claims under the Inheritance Act.

• Creditors of beneficiaries - those owed money by beneficiaries may have standing in specific circumstances.

Grounds for contesting

• Lack of valid execution - the Wills Act 1837 sets out strict requirements for making a valid will. Even small procedural errors can invalidate the entire document. Common issues include incorrect witnessing procedure, missing signatures, improper amendments made after signing without proper witnessing or when a witness or their spouse receives a benefit, invalidating that gift.

• Lack of capacity - the testator must have sufficient mental capacity at the time of making the will and must understand the nature of making a will, the extent of their estate and not be suffering from disorder of mind.

• Undue influence - occurs when someone has pressured the testator into making or changing their will. About 30% of challenges involve undue influence allegations. There must be coercion rather than mere persuasion, resulting in the testator's free being overborne by the influence. Circumstantial evidence or unusual pattern of behaviour evidence is usually insufficient.

• Fraudulent or forged will - alleged in approximately 5% of contested will cases. Evidence requirements include document examination, expert analysis of signatures, paper and ink dating, handwriting comparison, document forensics.

• Close relative excluded from will or not left much - being excluded from a will or receiving less than siblings is not, by itself, grounds to challenge a will's validity. Children have no automatic right to inherit. However, if you were financially dependent on the deceased, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for "reasonable financial provision." This requires showing financial dependency and need. Success depends on factors like your financial circumstances, other beneficiaries' needs, and the estate's size. The claim must be brought within 6 months of probate.

Process to contest or challenge a will

Before formal legal proceedings, several preliminary actions are necessary :-

• Obtain will copy from Probate Registry - cost £1.50, takes 10 working days.

• Review grounds for challenge

• Potentially enter a caveat (see below)

• Assess evidence supporting possible grounds.

• Collect relevant documents and witness details.

• Consider limitation periods

• Assess costs versus potential benefit

Entering a caveat

A caveat prevents the grant of probate and buys a maximum 6 month time period (which may be renewed further) for investigation.

However, once a caveat is lodged, any person with sufficient interest can challenge a caveat by serving a 'warning'. This includes executors, beneficiaries, or potential beneficiaries under an earlier will. The warning requires the caveator to either withdraw the caveat or enter an 'appearance' within 8 days to justify the caveat. If no appearance is entered, the caveat automatically lapses. If an appearance is entered, the matter proceeds to litigation and the caveator must prove their grounds for challenging the will. The warning/appearance process prevents caveats being used simply to delay probate without genuine grounds. The caveator risks paying all parties' legal costs if they can't justify the caveat.

Risks of challenging a will

Challenging a will in the UK is high-risk because unsuccessful challengers often pay both sides' legal costs, which can be substantial. Significant risks also include cost liability if unsuccessful, estate assets being depleted by litigation, family relationships being permanently damaged.

Verified statistics for will contest court actions (remember that some claims are settled or withdrawn before formal legal proceedings are started) from Property and Business Courts HMCTS data (latest published Q4 2023) show :-

• Contested probate claims issued: 829 in 2023

• Pre-trial settlement rate: 52%

• Full trial rate: 11%

As is a apparent from the above nearly 90% of court claims do not reach trial which demonstrates the importance of a strategic, flexible approach supported by skilled and experienced legal representation.

The 40% withdrawal rate (see above) of court cases largely reflects cases abandoned after legal costs mount or evidence proves weak. Success rates are significantly higher when negotiations are handled by experienced and specialist lawyers who understand both the legal framework and emotional dynamics of inheritance disputes.

Source: https://www.gov.uk/government/statistics/civil-justice-statistics-quarterly-july-to-september-2023

How we can help

Negotiation skills often achieve better outcomes than litigation, preserving both estate value and family relationships. Early assessment of merits and evidence, cost vs benefit analysis, knowledge of when to push for negotiation vs. litigation are key aspects of our experience and approach.