If you have concerns about a loved one's last will and testament, you might consider legally challenging the will. This is usually done because there is evidence that the will has been forged, that the deceased lacked mental capacity to make decisions about their estate, or that the person making the will was subject to undue influence when writing the document. It's not enough to challenge a will because you disagree with the decisions that have been made - there are specific legal grounds for contesting a will. 

The process can be complicated and requires a lot of evidence. It's also important to understand the legal bases for challenging a will, because if you do not have the legal grounds to issue a challenge you'll be unsuccessful. This can be expensive, as well as being a waste of time, and there are other options that may be available in these cases to resolve your problem. For example, in some cases, it may be possible to negotiate with the other parties involved and reach a settlement without needing to issue court proceedings. If you still believe you have the legal grounds to contest a will after reading this blog post, or you want advice on resolving a dispute another way, you should seek legal advice from our probate specialists.

Here, the contentious probate experts at Switalskis explain the grounds on which you can challenge a will, how the process works, and what other options you might consider if you have been left out of a will, or if it doesn't match with what you expected from your loved one.

The grounds for contesting a will

As we have noted, contesting a will involves challenging the validity of the document in some way, or making a claim against the estate under certain legal grounds. The process can be complex and requires strong evidence to support the claim, so it's important to understand the legal grounds for contesting a will before you launch into the process.

The legal grounds under which you can contest a will are as follows:

Lack of testamentary capacity

The person making the will (the testator) must have been of sound mind when writing the document. This means that they understood the nature, value and extent of their estate. They must also have understood who they may have been expected to provide for, and the consequences of the decisions they were making. If they lacked mental capacity, the will may be invalid. This type of challenge usually relies on medical records to show that the testator had a condition that affected their testamentary capacity, such as dementia, at the time the will was made.

Lack of valid execution

A will must comply with the formal requirements set out in the Wills Act 1837 to be legally valid and properly executed. The requirements for a valid will are:

• It must be in writing.
• The testator must sign it or direct someone else to sign it in their presence.
• It must be witnessed by two independent individuals present at the same time, who must also sign it. The witnesses present cannot be beneficiaries.

If you can prove that a will failed to meet these requirements, this could render the document invalid. If the document fails to fulfil these conditions on the surface, probate may be rejected by the probate registry before any challenge needs to be issued.

Undue influence

If someone coerced or pressured the testator into making or changing their will in a way that did not reflect their true wishes, the will can be challenged. It can be difficult to prove undue influence, and requires strong evidence to demonstrate that the person was not able to make their own decisions. Clear documentation or witness testimony showing that the will did not reflect the testator's wishes can be used to prove this.

Forgery

If the will was fraudulently altered, forged or created under false pretences, you can contest it on this basis. Handwriting analysis, copies of a previous will and other evidence can be used to show that signatures were forged, or indicate that changes were made to the document without the testator's knowledge.

Fraudulent calumny

If you believe that you were excluded or written out of a will on the basis of false statements made about you to the testator, you may have grounds to challenge the will. This is known as fraudulent calumny, and applies when:

• A third party makes false statements about you to the testator.
• The statements are intended to influence the testator’s decision about their will.
• The testator relies on those false statements to exclude you from their will.
• The person spreading the falsehoods knew them to be untrue or did not care whether they were true or not.

The key issue is proving that the testator’s decision was based on lies rather than their independent wishes. Evidence may include copies of old wills in which you were included, witness testimony confirming that false statements were made, and any proof you can provide that the statements were untrue.

Lack of knowledge and approval

The testator must have been fully aware of and agreed to the contents of the will when it was signed. If they were misled or did not understand the terms, the will may be invalid. For example, if the testator had impaired sight and could not see the contents of their will, it's possible that they may have been misled about its contents.

What is the process of challenging a will?

Your first step if you are considering challenging a will should be to seek legal advice immediately. A solicitor from the contentious probate team at Switalskis can help you to understand all of the options available and deliver expert legal advice that will deliver the best possible outcome. If we believe you have a valid legal challenge, the next step will depend on whether a grant of probate has been issued for the estate.

If the executor has applied for probate but it hasn't been granted yet, you can lodge a caveat with the Probate Registry. This prevents the grant of probate from being issued for up to six months, and it can be extended for a further six months if more time is needed to investigate the dispute over the will. From here, we will try to pursue alternative dispute resolution (ADR). There are several types of ADR, including negotiation, mediation and arbitration. Based on the outcome you want to achieve, we'll discuss the possibilities and help you to choose a suitable method.

If ADR fails or seems like an unsuitable option, you may need to issue court proceedings. This may also be necessary in cases where probate has been granted, as this means the will has been confirmed as legal and valid, and must be overturned by the court. Your solicitor will help you to make an application to the court and represent you during proceedings. This process can last a long time and you may be unable to recover legal fees even if the court finds in your favour, so it's important to understand the possible outcomes before choosing this option.

What happens if the will is successfully challenged?

If a will is found to be invalid in court proceedings, a court order will be issued to have the will overturned. There are two possible outcomes in these cases. If there are copies available of an earlier valid will, this should take effect. The grant of probate may be revoked and the executors removed, depending on the terms of the older will.

If no prior will exists, the estate will be distributed according to the rules of intestacy. Under the rules of intestacy, distribution of the estate is made according to a set order of priority established by the law. In brief, the deceased's spouse or civil partner will inherit their estate. Long-term unmarried partners are not provided for as spouses, but estranged partners who remain legally married or in a civil partnership will stand to inherit. If the person had children, the inheritance will be shared between the spouse and children. Otherwise, the inheritance passes to any living relatives in a set order.

Naturally, this is not always the best possible outcome. When you have grounds for contesting a will, it's important to consider what would happen if you were successful before you proceed, as the result of the challenge may be the same under the rules of intestacy. If you are concerned that the will didn't make reasonable financial provision for you, you may still end up without a gift after issuing a successful challenge.

Alternatively, there is sometimes the option to make a claim under the Inheritance Act, which can make financial provision for family members and others who were dependent on the deceased's estate. It's worthwhile to understand the process of making an Inheritance Act claim, as this often provides an alternative to the complications of contested wills.

Are there other options beyond challenging the will?

Even if a will is valid, certain individuals may be able to challenge it under the Inheritance (Provision for Family and Dependants) Act 1975 if they were not adequately provided for. To make an Inheritance Act claim, you do not need to contest the validity of the will on any of the above grounds. Instead, it's an opportunity to seek financial provision from the deceased's estate if you were not given any in their will.

This claim can be made by:

• A spouse or civil partner.
• A former spouse or civil partner who has not remarried.
• A cohabiting partner of at least two years.
• A child of the deceased.
• A person treated as a child by the deceased.
• A person who was financially dependent on the deceased.

The court can adjust the estate’s distribution to provide lump sum payments, ongoing maintenance allowance, housing allowance or other types of financial support. This type of claim needs to be made within six months of the grant of probate, but it is often a simpler approach than contesting a will.

For advice on the legal options available if you have concerns about a loved one's will, speak to Switalskis. Call us on 0800 138 0458 , or contact us through the website to start your fight for justice.