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Contesting a Will

Will disputes have become more prolific in recent years, partly due to the increase in  complex family arrangements and the increase in property values.

There are broadly speaking two types of claim that may arise:

  • First, a disappointed beneficiary may be able to challenge the validity of the Will.
  • Second, even if the Will is valid a disappointed beneficiary may be able to bring a claim if the Will does not make a “reasonable financial provision” for them, which can give rise to a claim under the Inheritance (Provision for Family and Dependents) Act 1975.

This section deals with the first of these two basis of challenge.  For information regarding claims under the Inheritance (Provision for Family and Dependents) Act 1975 please follow this link.

There are several grounds upon which the validity of a Will can be challenged.  These grounds are as follows:

  • The Will may not comply with the necessary formalities;
  • There may be mistakes in the Will;
  • The person making the Will (the “testator”) may not have had had “testamentary capacity” when the Will was made;
  • The testator may not have known or approved of the terms of the Will.  In other words, they may have signed the Will but not understood what they were signing.
  • The testator may have been subject to undue influence or coercion and did not therefore act under their own free will;
  • The Will may be a forgery;

If a validity challenge is successful, the Deceased’s previous Will takes effect or, in the event that there was no prior Will, the intestacy rules will apply.

Our Dispute Resolution team have extensive experience in both pursuing and defending all types of validity challenge and regularly act for both Claimants and Estates in the High Court.  We will aim to identify your goals and the most effective ways of achieving your aims at the outset of your case.   We will try to resolve your case without the need for court proceedings wherever possible and we are skilled in all forms of Alternative Dispute Resolution (including mediation).

Watch Our Video

Challenging a Will

Play video Challenging a Will

We know that challenging a will can be a really stressful and emotional time so in this video our Head of Dispute Resolution, Rob Stubbs, covers the options available to you. This includes how you can challenge the validity of a will and your options under the Inheritance (Provision for Family and Dependents) Act.

Success Stories

A Will with a drafting error

We acted for executors in relation to a claim for construction of the terms of a Will, in circumstances in which the drafting solicitors had made a drafting error, which resulted in uncertainty as to the correct interpretation of the Will. We were successful in resolving this matter and securing payment of the Executors costs by the negligent solicitors.

Challenging a forged Will

We represented a client in relation to a challenge to the validity of his mother’s last Will, in circumstances where all evidence pointed to the fact that the Will was a forgery and could not have been created on the date in question.  Establishing these facts required us to compile a detailed and through investigation of factual evidence, to substantiate our client’s claim.

Defending a challenge to a Will

We acted on behalf of a client in defending a challenge to his long-term partners’ last Will, in circumstances where the partner’s son alleged the Will had been made in circumstances where his mother lacked capacity and had been subject to undue influence.  We were successful in bringing this matter to an early conclusion by way of mediation.

Dispute concerning a late mother’s interest in a partnership

We represented Executors in relation to a dispute concerning their late mother’s interest in a partnership.  We were successful in negotiating payment to the estate in respect of the Deceased’s share in the partnership, by the business partner.

Removing a caveat

We assisted a client in removing a caveat entered by a discontented sibling and successfully defended allegations of lack of capacity and undue influence, in circumstances where we were able to show that there was insufficient evidence that the testator lacked the necessary testamentary capacity or that any undue influence was exerted.

Undue influence by sibling

We represented a client in relation to a dispute concerning the validity of his mother’s Will, in circumstances which suggested that the mother’s last Will had been made under duress and undue influence exerted by our client’s sibling.  In this case it was essential to consider the circumstances of the creation of the Will, including the drafting solicitor’s contemporaneous notes, against the background of family relationships in order to establish the necessary grounds of challenge.  We were successful in establishing undue influence at trial.

97% of our clients would recommend us to a friend
(Ongoing Client Survey)

The receptionist staff on both days we visited your office were extremely friendly and the whole experience of dealing with Banner Jones was wonderful

T Howard

Just a personal thank you to the Wills & Probate Department who made all comfortable from the off, and stated things clearly and professionally throughout.

Mr P, Mrs G, Mrs R, Hasland

Thank you again for your help..If anyone requires a solicitor at any time..I will recommend yourselves..for quick and friendly service

Miss N, Chesterfield

The service I received couldn't have been better!

Mrs C, Chesterfield

Katie delivered super service! Also advised on our deeds. Thank you!

Mr & Mrs L

I recieved excellent service from Katie Woodward when I made my Will - Excellent advice & caring nature.

Mrs C, Mansfield

It was a pleasure meeting and dealing with Becky Cardinal at your Mansfield office. It all went very smoothly. Thank you.

Mr & Mrs N, Boughton

I was really happy with the service I recieved, especially from Katie Woodward. Many thanks.

Mrs E, Chesterfield

Arranged an appointment to see Becky in regards to making our Wills. Becky was very good at making us feel at ease, and was knowledgeable and professional at all times. The process ran very smoothly.

Mr & Mrs N, Mansfield

Excellent company to deal with, excellent service with helpful personell and most of all, excellent proffessional advice all made very clear and understanding for myself. Thank you ever so much Katie.

Mr & Mrs W, Bakewell

Frequently Asked Questions

Is it possible to challenge a will?

Yes.  There are a number of circumstances in which it is possible to challenge the validity of a Will.   These include a lack of capacity or knowledge or approval of the testator, undue influence or fraud.  Should you have any concerns regarding the validity of a Will, you should obtain legal advice as a matter of urgency.

What if I have been left out of a Will or am unhappy with the amount that has been left to me?

Under the Inheritance (Provision for Family & Dependants) Act 1975, it is possible for certain individuals to pursue a claim if they can demonstrated that the financial provision made for them is inadequate.

Would I have to attend a court hearing if I pursue a claim?

Not necessarily.  Our objective in any dispute is to seek to a successful resolution as quickly and cost-effectively as possible.  This can include seeking to negotiate informally, attending a mediation and other methods of alternative dispute resolution.  The vast majority of disputes do not reach a final court hearing.

What options are available where an Executor/Administrator is not carrying out their role properly?

There are a number of possible outcomes such as the Executor/Administrator agreeing to stand down or be replaced, the Executor/Administrator undertaking to carry out their function going forward and even the removal or replacement of the Executor/Administrator.  No two situations are the same and therefore consideration must always be given to the most favorable outcome given the specific facts of the matter.

What is a Caveat and how does it work?

A caveat is a legal document issued by the Probate Registry that prevents a grant of probate being issued.  The caveat will remain in place for a period of 6 months (unless voluntarily removed by the person entering it or by an order of the Court.  A caveat can be renewed after 6 months. Caveats should not be obtained lightly or without justifiable reason as the Court can impose financial sanctions where it considers that a caveat has been improperly obtained. It is therefore advisable to obtain specialist legal advice before seeking to lodge a caveat.

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Rob  Stubbs
Rob Stubbs
Head of Dispute Resolution
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