We are regularly asked, ‘Is it worth contesting a will?’ Here are the key points to consider if you are thinking about challenging a will.
Whether it is worth contesting a will is a subjective question, and the answer is likely to depend on both the individual circumstances of your case, and what you want to achieve.
The starting point is to determine whether you have the legal standing to make a challenge.
Do you have grounds to contest the legal validity of a will?
To contest a will on the basis that it isn’t legally valid, you must be able to satisfy the grounds for doing so. There are various grounds available. The most popular are:
Lack of Testamentary Capacity
This is where you argue that the deceased was not of sound mind when making the will.
Undue Influence
This is where you believe someone has pressured or manipulated the deceased into making the will.
Fraud or Forgery
This is where the will was created or altered dishonestly.
Improper Execution
Does the will meet all the legal requirements?
Inheritance Act claims
An alternative to challenging the validity of a will is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for ‘reasonable financial provision’. Inheritance Act claims are commonly made by spouses, children, cohabitees, and dependants.
Estoppel claims
If promises have been made to you about what you can expect to inherit and you have relied upon them to your detriment, then a ‘proprietary estoppel’ claim may be worth exploring.
Deed of variation
If an agreement can be reached with all the parties involved in a dispute then a deed of variation might offer a cost-effective solution. However this must be done within two years of the date of death.
Can you cope with the stress?
When considering whether it’s worth contesting a will you need to bear in mind that will disputes can be extremely stressful and time consuming at what is already an emotional time.
Are you able to fund the legal costs?
It is also important to consider legal costs. Contesting a will can be expensive, and you cannot assume that the costs will be automatically paid out of the deceased’s estate. The loser may be required to pay not only their own legal costs but also make a substantial contribution towards the winner’s costs. In some circumstances each party will be responsible for paying their own costs
Furthermore, if the estate is of low value, then the legal fees could outweigh any potential benefit.
There are various funding options available such as No Win No Fee and deferred fees, but these tend to be offered where it is clear that the legal merits of the case are good.
Will the likely outcome make the exercise worthwhile?
You need to bear in mind that if the will is declared to be invalid, the estate will be distributed in accordance with an earlier valid will, or if there isn’t one, the intestacy rules. So, before contesting the will you should consider how a successful challenge would impact your personal position. If there is an earlier will, for instance, then are you a beneficiary under it?
Free consultation
Our specialist contentious probate lawyers are experts in contesting wills. We offer a free consultation service and can provide details of the funding options available to you.
Call us on 0333 888 0409 or send an email with details of your case to us at [email protected] and we will provide you with a free case assessment and guidance on whether no win – no fee funding will be available.