Contesting a will and inheritance disputes

There are two quite different routes, they have different requirements and different deadlines, and people frequently pursue the wrong one.

Route one — challenging the will itself

An argument that the will is not valid, which if successful means an earlier will or the intestacy rules apply instead.

Lack of testamentary capacity. The testator did not understand what they were doing, the extent of their property, or the claims they ought to consider. Medical records are usually decisive, and where a solicitor took instructions their file is frequently the most important document in the case.

Want of knowledge and approval. The testator did not know and approve the contents — particularly relevant where circumstances excite suspicion, such as a will prepared by or at the instigation of a substantial beneficiary.

Undue influence. Coercion rather than persuasion. A high bar, and the burden is on the person alleging it — but a realistic claim where an elderly or vulnerable person was isolated and dependent.

Lack of due execution. The formal requirements were not met. Less common, and decisive where it applies.

Forgery or fraud. Rare, and serious to allege.

Route two — reasonable financial provision

A different claim entirely. It does not say the will is invalid; it says it does not make reasonable financial provision for you.

Available to a defined class including spouses and civil partners, former spouses who have not remarried, cohabitants who lived with the deceased for at least two years, children including adult children, those treated as a child of the family, and anyone maintained by the deceased.

The deadline is six months from the grant of probate, and it is short. Permission to apply late is possible and not to be relied on. This is the single most important fact on this page — people spend months in family discussions and discover the deadline has passed.

The standard differs: a spouse is entitled to such provision as is reasonable in all the circumstances, whether or not required for maintenance. Everyone else is limited to what is reasonable for their maintenance, which is a materially lower measure — and is why adult children’s claims succeed less often than people expect.

Which route

They are not alternatives to be picked by preference.

Challenge the will’s validity where there is real evidence of incapacity, undue influence or a defect in execution, and where an earlier will or intestacy would produce a better outcome for you. Note that succeeding can leave you worse off if the previous position was no better.

Claim reasonable provision where the will is probably valid but leaves you without adequate support and you fall within the class.

Both can be pursued where the facts support each, though the costs consequences of running weak arguments need thinking about.

Other disputes

Executor and trustee disputes — failure to administer, conflicts of interest, and applications to remove and replace.

Proprietary estoppel, where you were promised property, relied on the promise to your detriment, and it would be unconscionable to go back on it. Common in farming and family business cases and frequently the strongest claim available.

Claims against the estate by creditors or under a contract.

Challenges to lifetime gifts made under undue influence or when capacity was lacking.

What to do now

Enter a caveat if you are considering challenging validity, which prevents a grant being issued while matters are investigated. It is inexpensive and it buys time.

Note the six-month deadline from the grant if a provision claim is possible.

Request the will file from the solicitor who prepared it. There is an established basis for doing so in these disputes, and it is usually the most important evidence.

Preserve what you have — correspondence, notes of conversations, anything about the deceased’s intentions and circumstances.

Do not distribute anything if you are an executor facing a claim.

What it costs

£400 per hour plus VAT with an estimate by stage.

Costs in these disputes do not always follow the ordinary rule — in some circumstances they come out of the estate — but that is not a safe assumption and we will explain the position for your matter before anything is issued.

An initial assessment — which route, what the prospects are, and what the deadlines are — is a fixed fee and should happen quickly given the six-month limit.

Questions

Questions people ask us

How long do I have to contest a will?

For a reasonable financial provision claim, six months from the grant of probate. For a validity challenge there is no equivalent short deadline, but acting quickly matters — once an estate is distributed, recovery is considerably harder.

My father left me nothing. Can I claim?

Possibly. Adult children can bring a provision claim, but the standard is what is reasonable for your maintenance, which is a lower measure than for a spouse. These claims succeed where there is real need and a connection that justifies provision.

He was confused at the end. Is that enough?

Not by itself. Capacity is assessed against a specific legal test at the time the will was made, and a person can lack capacity for some purposes and not for others. Medical records and the will-drafter’s file usually decide it.

What is a caveat?

An entry preventing a grant of probate being issued, which stops the estate being distributed while matters are investigated. Inexpensive and often the right first step where validity is in question.

He promised me the farm. Does a promise count?

It can. Proprietary estoppel requires a promise, reliance on it to your detriment, and unconscionability in going back on it. In family business and farming cases it is frequently the strongest claim available.

Will the estate pay my costs?

Sometimes, but do not assume it. The ordinary rule is that costs follow the event, with exceptions in probate disputes. We will explain where your matter is likely to fall.

The hub

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