Contesting a will or an estate

Losing someone is difficult enough, and when there is then a dispute about the will or the estate things can become emotionally charged and hard to deal with objectively. This page sets out the main ways an estate can be challenged, the time limits, and who can help.

I don’t act on will disputes myself. My usual colleagues at Nexa Law for contested probate are Andrew King and Louise Sackey, and there are others. If you send me the details I’ll work out who is best placed, given what the case involves, their capacity and their pricing, and introduce you. They then act for you and quote their own fee. There’s more about my Nexa colleagues here.

Time limits

The time limits are short, so please check them first. If you’re thinking of a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, the application has to be made within six months of the grant of probate or letters of administration, unless the court gives permission for a late claim (section 4), and you shouldn’t rely on getting that permission.

A challenge to the validity of the will itself has no equivalent fixed deadline, but delay does real harm, as once the estate has been paid out it is far harder to get money back than it is to stop it being paid in the first place. If a grant hasn’t been issued yet, it’s often possible to enter a caveat at the Probate Registry, which stops a grant being made while the concerns are looked into. For that reason the first thing my colleagues will ask is whether there’s a grant and when it was dated.

The grounds for challenging a will

A will can be set aside if it wasn’t made properly or wasn’t truly the person’s own, and there are four usual grounds.

The first is that it wasn’t validly signed and witnessed. Section 9 of the Wills Act 1837 requires a will to be in writing, signed by the person making it (or at their direction) and witnessed by two people present at the same time.

The second is that the person lacked mental capacity when they made it, or didn’t know and approve what it said. These cases turn on medical records and on the notes of whoever drafted the will.

The third is that someone pressured them into it (undue influence), or poisoned their mind against a relative with things that weren’t true, which lawyers call fraudulent calumny. Both are hard to prove, since the main witness has died.

The fourth is that the will was forged or is otherwise fraudulent.

If a will is set aside, the estate passes under the previous valid will, or under the intestacy rules if there isn’t one.

Being left out, and problems with executors

An Inheritance Act claim works differently, as it accepts that the will is valid (or that there’s no will and the intestacy rules apply) and says the result doesn’t make reasonable financial provision for the person claiming. Only certain people can claim, including spouses and civil partners, some former spouses, cohabitees of two years or more, children (adult children included) and people the deceased was maintaining. What a court will award depends heavily on the claimant’s needs and resources, the size of the estate and who else has a call on it.

Some disputes are about the way the estate is being handled and have nothing to do with the will. Executors who won’t get on with the job, won’t provide accounts, or are helping themselves can be required by the court to account, and in serious cases removed and replaced. Arguments about a house the deceased co-owned often overlap with property ownership disputes.

When the estate includes a business

If the person who died owned shares in a company, the family can find themselves in dispute with the surviving shareholders about who gets the shares and at what price, or with nobody able to run the company at all. This is much closer to my own work, and I’ve written about what happens when a shareholder dies and what happens when a sole shareholder and director dies. Where the answer is a negotiated sale or purchase of the shares, I can help with that directly.

How these cases are paid for

Contested probate is expensive if it goes to trial, and most cases settle well before that. Funding varies, so some people pay privately, some have legal expenses insurance on a home policy, and some solicitors will consider a conditional fee (“no win, no fee”) agreement in suitable cases. Each has a cost, so you should consider matters fully and ask for the options to be explained before you sign anything. My colleague will set out their own terms once they’ve seen the papers.

What to send

• A copy of the will, and any earlier will if you have one
• The date of death and the date of the grant, if there is one
• Your relationship to the person who died
• A short account of what concerns you and a rough idea of what’s in the estate

Next steps

Get in touch with those details, and mention the date of the grant if you know it. I’m based in Leicester, but my colleagues act for clients across England and Wales.