Legally challenging the validity of a Will

Legally challenging the validity of a Will

If you believe that a loved one’s Will is not valid for some reason, you may be entitled to raise a legal challenge. We look at challenging the validity of a will and what is involved.

Grounds for challenging the validity of a Will

There are a number of reasons why a Will may not be valid:

  • It was not properly executed
  • The person making the Will did not have adequate understanding of what they were signing. They may have lost capacity if they were suffering from dementia
  • They did not approve the Will or have knowledge of its contents
  • They were unduly influenced into signing
  • The Will was a forgery or a fraud
  • The Will was revoked, for example, by marriage or the making of a subsequent Will

It may also be possible to challenge a Will if you believe that it contains an error. Or in the case where you have not been included in the Will but you depended on the deceased financially. Therefore believing that you should have been provided for.

Who is entitled to challenge a Will?

You will generally need to have an interest in the contents of a Will to be able to challenge it. You may be the deceased’s spouse, close family member or cohabiting partner. Alternatively you may be someone who is mentioned in the Will or in a previous Will.

Approaching the Probate Registry

If you have a valid claim, you can send a caveat to the Probate Registry. This means that they will not issue a Grant of Probate in respect of the Will for six months. The caveat can be renewed after this time if necessary.

During this time, you can try to negotiate a solution with the executors. However, you need to be aware that they are required to act in the best interests of the beneficiaries at all times.

Where a settlement cannot be reached, you may need to make a claim to the court.

Making a court claim

A court claim challenging the validity of a Will is generally a last resort and can be a complex and lengthy process. For example, it may be difficult to prove one way or the other whether someone with dementia still had sufficient understanding, or testamentary capacity, to make a Will. Even if their mental faculties have declined, they may still be capable of making a valid Will. Evidence would be needed proving the contrary in order to bring a successful challenge.

An experienced contentious probate solicitor will be able to advise you honestly about your chances of success. They will be able to talk through any other possible options with you.

Financing a claim

It may be possible to enter into a no win, no fee agreement. The court may in some circumstances, where no other funding was available, order that the cost of this is paid from the estate on conclusion of a successful claim.

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