How do I Contest a Will or Intestacy in England and Wales?

Contentious Probate is a Very Specialist Area – do NOT dabble!

Probate Disputes UPDATED WARNING: I understand it is currently taking several months for copies of Wills and Grants of Probate / Letters of Administration to be uploaded to the Government website. WHY DOES THIS MATTER?  The standard maximum time for bringing a Probate Claim is SIX MONTHS from when the Grant is issued.  After this, any such application may be considered out of time and consequently ignored.  So it is more important than ever to take advice early, as putting probate claims together in as little as a month is well nigh impossible.   Of course, judges MAY be sympathetic and allow the claim to proceed. But they may not, so early action is key do use the form below.Back to the original article:Families seem increasingly inclined to challenge a Will or contest Intestacy Rules, which apply if there is no valid Will when someone dies.But does it make sense to do anything about it by raising a probate or Will dispute? Can a Will be contested?  Yes, it can, but there are time limits and serious risks. There are all sorts of reasons people may decide to contest a Will, but the earlier you challenge a will, the better, and you may save tens of thousands of pounds.  No one really wants the main winners to be the lawyers! Once Probate has been granted, you can still challenge a Will, but a six-month time window is on the way to closing.    Just send details in the form at the foot, and we’ll get an expert firm to contact you for a quick and free informal chat to see if there is potential for successfully challenging a Will.Some reasons for the probate to become contentious (contentious probate is the trade jargon for disputing the estate in the UK) are given below the video. It is dangerous territory to stray into without advice or an inexperienced firm.  Sometimes, there isn’t really a dispute, as the changes can be agreed upon – see Deed of Variation. If there is no agreement, read on and find out how to challenge a Will or intestacy… (our disputed probate enquiry form is at the foot of the page.)

Do I have a valid claim to challenge a Will?

(See the contentious probate claim checker.)The Claim Checker provides a simple and reliable answer, whether you are defending or considering contesting a Will or Intestacy. Please don’t start a probate dispute just because you are miffed. Judges need sound legal arguments to make decisions, so use the checker or the form below to see if you are likely to have the law on your side. Not taking specialist expert advice in this area is courting financial disaster, and few local firms have enough demand to employ the necessary specialist staff.

                                                           Our Free Guide to Probate is here.

Can I dispute a Will?

Here are some of the grounds for contesting a Will in England and Wales (please bear in mind this site covers issues in England and Wales – the law north of the border is totally different and in NI slightly different):

• Contesting a Will as you have unreasonably been left out of it.

A classic example would be a husband leaving a wife penniless – quite apart from the next heading, it is on the face of it quite unreasonable!

• Challenge a Will under the Inheritance Act (“The 1975 Act.”)

Wives, husbands and sometimes others may be entitled to expect reasonable provision under the Will.   So might anyone who has been financially or otherwise looked after by the deceased.  So if you provided rent-free accommodation for your old Nanny and then left her out of your Will and exposed to being thrown out onto the streets, she might have a potential probate dispute case.   Similarly, obviously young children, maybe mistresses or whatever the male version of that is.    Children have no automatic right to inherit, however. See Ilott v Mitson.  We’re often asked if a stepchild can challenge a Will, and there is no reason why they can’t, given the right grounds (use the form below). Equally, leaving a person you have habitually provided for during your life – a disabled child, common law spouse, mistress, etc could potentially lead to a justified probate claim.  Not that it is generally straightforward!

• Challenging a Will through Lack of Mental Capacity.

Contesting a Will under these circumstances is common. In effect, what you need to prove is that the person making it did not have enough understanding of what they were doing to be capable – under the Law – of making a legally valid Will. This is ONLY at the time the document was made and signed; a subsequent decline in mental capacity would not affect the validity of the document, though other issues might. It is far from easy to prove, and a probate dispute solicitor will find it easier to obtain crucial medical records than the potential challenger.

• Disputing a Will because of Undue Influence.

One of the most common reasons to contest a Will.  You need to show that someone has wrongly influenced the person making it (the “Testator”) to their benefit or to the benefit of another person.  Undue influence is not easy to prove in general.  However, where the person allegedly influencing is a person on whom the testator (the person whose Will it was) is very dependent, it is perhaps easier to convince the Court.  In some cases, the proof burden may be reversed, especially where the person concerned is a carer.  More on Undue Influence.

• Contest a Will by Alleging Duress.

Another common reason for probate disputes.   Where a Will is made “under duress” it means that the person was effectively forced to make it under threat (in the widest terms) of some sort – real or perceived.  An example would be a beneficiary threatening to put the testator into a care home unless they leave them their cash!  Surprisingly, solicitors often allow a beneficiary to be in the room when a Will is discussed, which could easily amount to “undue influence” as it is hard to disappoint someone in the room with you.  Potentially useful grounds to challenge if evidence is available.  Disproportionate gifts to carers are a common subject of probate disputes.

• Contest a Will or Intestacy because the Executor is behaving improperly.

Plenty of executors or administrators deliberately or otherwise do not follow the law when it comes to distributing to the correct beneficiaries, preferring to keep the money themselves.  Or maybe sell a property well below market value, possibly to a friend or maybe on the advice of a less-than-honourable estate agent. Valuables often vanish – but sometimes the valuables are not actually valuable, and a bit of openness would have prevented there from being a problem.  The trouble is that executors don’t have to keep beneficiaries or possible beneficiaries informed.  Right at the end, the actual beneficiaries should receive an account of what has been paid out and brought in, but it may not be too accurate.  This is a really difficult area and often does lasting damage to family relationships, even once the executor discovers they have been at fault. But it is best to raise the issues early.

• Wrongly witnessed Wills are generally invalid….

You can raise a probate dispute because the formalities of signing it were not complied with – for example; the witnesses were not both present at the same time with the testator when they signed the Will.  This is a complex area as people fail to follow the very simple guidelines, and the Courts are called upon to decide if enough has been done to make it valid – or not.

• Challenging a Will due to Promissory Estoppel.

A classic example of this is the farmer who uses a child as cheap labour for years on the basis that they will inherit the farm and then leaves it to someone else.   In effect, a contract exists between the farmer and the child that in return for cheap labour, the child will inherit the farm (or whatever it is.)

• Another Will found –

People are very careless with their legal planning affairs (if you don’t want to be, we suggest you visit this site to help avoid your will being contested as it isn’t found or is out of date!)  Each successive new Last Will and Testament normally cancels the previous one automatically. Still, often people forget where the old one is kept (and indeed the current one), so the wrong Will may be found initially.  So, one set of executors may, in all innocence, try to obtain probate on an old Will.   When the correct one turns up later, there are clearly grounds for contesting, and lots of extra time and money may be wasted! It may be worth considering doing your own Will search.

• Has the Will been invalidated?

This can be a reason to contest a Will.  The commonest issue is that the Will has been cancelled by a subsequent marriage as it was not (clearly) made in expectation of that marriage.  People can live together for years, having made their Last Wills in the early days – then get married, which will usually cancel them.   If the Wills are not brought back to validity by way of a codicil reviving them, then the Rules of Intestacy may well apply and have a quite different result from that intended.  Foreign Wills often accidentally cancel UK ones and vice versa. Again, a Will Search may throw up a latter Will.

• Will destroyed – could it still be valid?

Just because a Will has been destroyed does not necessarily mean it is no longer valid!   There have been cases where Wills have been shredded and thrown into the rubbish, and they have remained legally valid, though often not without contesting the Will or intestacy that would otherwise have been brought into effect. The general presumption is that it was destroyed deliberately by the testator.   We recommend the Peace of Mind Service for greater security, reviews and knowing when updates are needed and avoiding the situation where crucial documents are missing.

• Will Fraudulent

The Will may not even be genuine – pages may have been replaced, the signature forged, the witnesses co-conspirators.  Handwriting experts may be called in.

How to challenge a Will or Intestacy – if it makes sense to do so?

Like most things, you can contest a Will without professional help.  However, contentious probate is a very complex process, and it can end up being pretty personal and vicious, too. If you get it wrong, it is very easy to end up paying the other side’s costs, even if you win! Most people would prefer to make it less personal by employing an experienced, contentious probate lawyer.  Keeping the family together should always be a consideration – people are raw and do not always react reasonably when anyone challenges a Last Will and testament.However, contesting a Will is sometimes a complete waste of time as it can bankrupt the estate or the person the Judge considers does not have a well-thought-through claim to challenge a Will.  So we recommend paying for a professional review before you waste (potentially) tens of thousands of pounds or more with little prospect of success.

Who pays if a Will is challenged?

Who pays for the contentious probate process is not straightforward, though it is within the judge’s decision if it goes to Court.  The Judge will weigh the decision and award costs as he or she thinks fit, so even a winner can end up paying costs.  A claim which is merely wishful thinking is likely to result in both sides’ costs being awarded against the wishful thinker, so don’t challenge a Will in Court just because you think it is unfair – that is not in itself a ground for successfully contesting a Will.

Contentious Probate Solicitors near me.

This is a common search when there is a potential probate dispute, but be aware that a small minority of solicitors are probate experts, and very, very few are experts on contentious probate.  It really makes very little difference these days where the firm is located; that is why were are fussy about the firms we introduce you to.

No Win No Fee Contentious Probate Solicitors.

The costs can be very high, so no win no fee solicitors will only accept very good claims, they have to be pretty much a racing certainty, and for a sizeable amount.  So, the claim would normally have to be worth £100,000 plus. We are happy to take the details and pass them on to someone who may consider taking it on for you.  Another option for financing probate disputes.  Always bear in mind the possibility that the Judge will award costs against you, so you may not have to pay your own legal fees, but you could end up paying the other side’s costs as well as your own.

Can I challenge a Will after Probate has been granted?

Many Will changes arise after probate has been granted for the simple reason that the facts are often unknown before that as the executors chose not to make available full details of how the estate is to be distributed.  Nor are they required to.  But the document becomes public property after the grant, and anyone can download a copy of both the Last Will and Testament and the Grant. But there is a time frame of 6 months in which claims are expected to be made, starting from the date when the Grant is issued.   Claims after that time may not be considered unless a judge can be convinced there is a good reason for the late application, so it is also necessary to put in a standing search for the copies.   But always remember that not every estate requires probate, so waiting for it to be issued may be a waste of time.

Concerns about the Executors? Highly Recommended: make a Standing Search

If probate has yet to be granted, a standing search should alert you as soon as probate has been granted so you can examine the Will (if any) and Grant at the earliest possible moment. But be aware it has to be renewed after six months. At the current time (November 2023), Probate grants may take anything between two and a half weeks and sometimes more than a year to be issued.  You can use form PA1S to ask to be sent a copy of a probate if it’s granted in the next six months. This is called a ‘standing search’. It costs £3.I am no contentious probate expert, but it seems that waiting until probate has been granted and you have been able to obtain a copy of the Will (if any) and Grant is really taking a risk.  The time available to put together a challenge and find the right contentious probate lawyers could be just too short to come within the standard 6-month window for Court action.

What is a Larke v Nugus Request?

A Larke v Nugus letter may be sent when there is a dispute with a Will and the purpose of the letter is to gather as much information about the preparation and circumstances behind the creation of the Will as possible. The idea is to get as much background information about the preparation of the Will as possible from the firm that drafted it.Information that should be provided in response to the Larke v Nugus include:

• The relationship between the advisor and the Testator.
• Details on how the instructions were given and who was present at the time.
• Information on how mental capacity was established and documented.
• Earlier Wills, how does the new Will differ from earlier Wills and for what reason.
• Whether the information provided to the testator was explained and understood.
• The execution of the Will, who was present and where it took place.

This information will assist an informed decision as to whether any issues surround the document’s validity. Often, it will be clear that everything is in order.

Claims for Small Inheritances under £10,000.

This is offered as potentially helpful and is not within my area of expertise. If the executor has refused to pay you an inheritance which is under £10,000 – and specific legacies are paid out before the residuary legatee (in English, the residuary legatee/s are the people who get the remainder of the estate after and specific gifts (legacies) in the Will.  Sometimes, the specific gifts will use up all of the estate, and the remaindermen (more jargon – read as residuary legatees!) might get little or nothing and be tempted not to pay out the specific legacies – which they are required to do if there is enough money.  So assuming you know what your legacy is and it is readily convertible to a financial value of less than £10,000 then you may be able to access the confidential telephone mediation service offered by the Court Service (not the Probate Registry) if you issue your claim at court, and this is defended. A court fee is charged when you issue any claim, but no separate charge is made for the mediation.