Can I challenge a will?

Losing a close relative is a painful and stressful experience. You have to cope with grief as well as think about practical matters, such as funerals and possible inheritance. At this point, the provisions made by the deceased in their will may come as a nasty shock. The number of cases contesting wills is on the increase. Instead of leaving the estate to their family, people make provisions for friends or charities. Alternatively, complicated family situations may be the cause: there may be previous marriages, new partners and half-siblings, who may feel “left out”.

If you feel that the provisions of the will are not adequate and contemplate challenging them, you should bear in mind that, unlike certain other jurisdictions where some inheritance rules are compulsory, English Law allows complete freedom of the testator. This means that any provisions made in anybody’s favour would be valid and the legal basis for contesting them is rather narrow:

Lack of formalities – the will must be in writing, signed by the testator in the presence of two witnesses who attest and sign the will, or signed in the presence of the testator at their direction.
The testator did not have the requisite mental capacity.
Lack of knowledge and approval – it must be shown that the testator did not know or approve of the contents of the will.
Undue influence.

It is the burden of the person trying to contest the will to prove any of the above, which (with exception of lack of formalities) may be a difficult task. It is also the person’s responsibility to apply for a caveat to prevent a grant of probate being taken and the estate administered under the will provisions.

There are other important things to consider. The process may be costly and lengthy. You also face the risk of paying the opponent’s fees in case you lose. There also may be an earlier version of the will, which will become valid once the contested version is declared void by the Court. Alternatively, if no previous will exists, the estate will be distributed under the intestacy rules, which may not necessarily be advantageous to you. It is therefore highly advisable that you consult a specialist solicitor who is experienced in challenging wills, who will analyse the situation, will evaluate the strengths and weaknesses of your case and will advise you on any possible course of action you may wish to take.

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