If you’ve been cut out of a will by your parent or other relative and you want to contest it, where should you start?
Here, we explain the steps you need to take if you think you have a case to challenge a will.
Getting hold of the will
You don’t have the right to see a copy of a will before the person who’s drawn it up has died. After probate has been granted anyone can see a copy of the will because it is a public document.
To get hold of a copy, if probate has been granted in England or Wales, contact the Probate Registry or, if you’re in Scotland, you’ll need to get in touch with your local sheriff to see a copy of the will. In Northern Ireland you should contact the Probate Office.
If you don’t know when probate will be granted, for example, if a relative has died but you don’t know when the executors will apply for the grant of probate, you can do a ‘standing search’ of their will. This means that you will be sent a copy of the person’s will once probate has been granted.
Should you challenge the will?
You should think very carefully about whether you really want to challenge a will as it can prove costly, both financially and emotionally. Mark Keenan, a partner with law firm Mishcon de Reya says that he normally tries to dissuade people from challenging a will: “Don’t think of challenging a will in the first few moments following a bereavement,” he says. “Don’t do it when you feel emotional. Go away and have a long, hard think about whether this is something you really want to do.”
“The classic dispute is when a second family is involved”, according to Mr Keenan, “for example, when a stepmother is in dispute with the children of the first marriage.”
“How do you prevent these challenges? It is difficult. You might leave a legacy to the children, with a provision that if that person were to challenge the will in any way, they forfeit that provision. Emotions run so high that it’s very difficult to minimize the risks of a claim. Even though logic says that there’s no point in making the claim, emotions will take over.”
Mr Keenan’s experience over the years is that the person writing the will may make a will that’s completely different to what they’ve said they’ll do, and the surviving relatives understandably feel this injustice.
If you think you have a case
Litigation can become very personal and accusatory, not to mention expensive, so if you can possibly avoid it, you should.
Mediation, where you seek to resolve your dispute with the help of an impartial third person, might be one way to resolve things. Companies offering this kind of service include The National Family Mediation Service, IPOS mediation and MIAMS Family Mediation Service. Always do plenty of research before choosing a mediator and make sure you find out the costs involved before proceeding.
If your dispute cannot be resolved through mediation and you feel you have no other option but to legally contest the contents of the will, you must be able to prove you have grounds to do so.
On what basis can I contest a will?
Grounds to contest a will include you having evidence that the person who wrote it was not of sound mind when they wrote it, or that they were manipulated or coerced into submitting unfair terms into their will. You may also have a case if you have proof that the will has been forged in any way, or that it wasn’t properly executed. A will must be signed in the presence of at least two formal witnesses and each witness must then also give a signed receipt that they have witnessed the signing of the will by the person whose will it is.
Under the Inheritance Act of 1975, you may also be eligible to make a claim if you were financially dependent on the person who died, for example, they were your spouse or parent, and their will fails to make ‘reasonable’ provision for you.
Don’t delay
If you’re planning to challenge a will, you should do so as quickly as possible, ideally before probate is granted.
To prevent probate going ahead, you can lodge what’s known as ‘a caveat’ at the probate registry. A caveat will remain in place for six months until it is extended, or it is removed. You should always seek legal advice before submitting a caveat to make sure you have grounds to do so.
If you challenge a will after the grant of probate, for example because you don’t think you’ve been adequately provided for, you only have six months to submit your challenge.
Remember, contesting a will should not be entered into lightly. It can be extremely expensive and unless you have solid evidence to support your claim, you’re unlikely to be successful. It may also result in the total breakdown of family relationships.
If you need to find a solicitor, you can do so on the Law Society’s database – it can be helpful to search for one who specialises in wills and probate, rather than a more generalist lawyer.