Can you contest a will after probate?
2 October 2023
Dealing with the death of a loved one is often one of the most difficult things we will face, before even having to deal with any issues of inheritance. When it comes to their will, we all want a fair and faithful distribution of assets.
However, unfortunately, people may often be left feeling dejected by the assets they have or have not received. In these unfortunate circumstances, it is appropriate to understand what legal recourse you have and whether you have the ability to contest a will after probate.
If you are dealing with contentious probate and need guidance on the matter, our specialist team at Redkite Solicitors is here to help. For over one hundred years, we have been aiding individuals, families, and businesses throughout England and Wales, proudly supporting our local communities. Our team of legal experts is there to support you, every step of the way.
Dealing with contentious probate
Contesting a will after probate can add confusion or uncertainty, to an already demanding situation. It is important to note, in the eyes of English law, the importance of respecting the wishes of the deceased, even when facing a different outcome than expected. In the event of an uneven or odd distribution of the estate, it is largely likely to be held valid, if it’s in accordance with what the person who has died wanted.
However, in circumstances where you suspect the will isn’t a true representation of what the person making the will (the ‘testator’) wanted or the will has not been followed (‘executed’) accordingly, it may be deemed invalid and can be contested.
In the event of the will being deemed invalid, or alternatively, there is no will, the estate (assets and possessions) will be allocated in accordance with the rules of intestacy, whereby the estate is distributed to a hierarchy of relatives according to specific rules.
If you believe a will has not been executed properly and you have valid grounds for contesting a will, we strongly recommend you seek expert legal advice as soon as possible.
Can a will be contested?
In short, the answer is yes. However, it is important to remember that legally contesting a will is by no means a guarantee for success.
If deciding to contest a will after probate, we strongly advise you to seek legal assistance and bring about any claim at the earliest date possible. Recoverability of assets, in the event of a successful claim, can prove problematic once an estate has already been distributed. This scenario can also often lead to further legal costs.
Another important factor to bear in mind in the process of contesting a will is your location. Contesting a will in Scotland, for instance, will follow a different set of legal terms and stipulations to that of England or Wales, in regard to wills and successions. If you are residing in Scotland, we advise you to seek legal advice from registered solicitors within your country.
What are the grounds for contesting a will?
In England and Wales, there are a number of valid legal grounds for contesting a will. These include:
- Lack of testamentary capacity – This is the legal term for the capacity, or understanding, required to make or alter a valid will. If the person making or amending the will (the testator) lacks testamentary capacity, when the will is executed, the will is deemed invalid. It is imperative that the testator is of sound mind when the will is executed. Testamentary capacity remains one of the most common grounds for contesting a will.
- Undue influence or coercion – This is where the testator could have been influenced or coerced into changing their will. Coercion is pressure that overwhelms the testator’s own wishes, without completely changing their mind. The courts will consider the physical and mental capacity of the testator, as this signifies how susceptible they could have been to coercion. If the will is successfully contested on the grounds of undue influence or coercion, the estate will pass under the testator’s earlier will, providing there was one. If there was no previous will, the estate will be distributed via the intestacy rules.
- Lack of knowledge and approval – This can apply when a mistake has been made within the will, either due to the testator having no knowledge of making the will, is lacking in their physical or mental capacity, or wasn’t challenged during the process. For a will to be executed correctly a person must have fully understood and approved of the contents.
- Forgery and fraud – This applies whereby either the contents of the will is fraudulent or forged, or alternatively, the signature of the person who made the will is forged. If either of these is said to apply, the will is deemed invalid.
- Wills Act 1837 – A valid will must remain in compliance with Section 9 of the Wills Act (1837.) If the will is seen as not in compliance with any of the stipulations, the will can be contested.
- Reasonable financial provision – It may be possible to seek reasonable financial provision in the case of being financially dependent upon the person who has died, but no such provision has been made in the will. This applies under the Inheritance (Provision for Family and Dependants) Act 1975.
What is the cost of contesting a will?
There is no conclusive answer on the costs involved when contesting a will, as it depends upon many variables. Your eventual cost will depend upon the nature of the claim such as whether any of the costs can be borne by the estate, as well as whether the courts find in your favour or not. Ultimately, the final costs bill will be a decision of the court, which makes it highly difficult to deduce the cost to contest a will.
In regards to who has to pay to defend a contested will, the challenging party will initially incur the costs. However, the losing party may be ordered to pay the winning party’s costs. This will be decided through court proceedings on a case-by-case basis.
Due to the potential court and legal costs, it remains crucial to assess the merit of a claim as well as the chances for success, before any action is taken. An unsuccessful claim can lead to large financial legal fees, which you will be liable to pay.
Is it possible to receive legal aid when contesting a will?
In circumstances whereby a case is eligible for legal aid and you are unable to afford any legal fees, aid can be given towards any potential legal costs incurred, such as legal advice, mediation and representation in a court or tribunal.
Unfortunately, legal aid is no longer available in contentious probate matters. It is recommended, as an alternative, to check your home buildings and content insurance, to see if your policy offers any relevant coverage.
In circumstances whereby there is a reasonable prospect for success, it can be possible to work with solicitors via a ‘pay at the end’ basis (from inheritance), or even enter into a ‘no win no fee’ agreement. If you have a strong claim, you may also be able to get third party funding for your claim.
Who is able to contest a will?
In theory, anyone is able to contest a will regardless of their relationship to the testator. Whether it be a sibling, civil partner or even somebody who doesn’t appear to benefit at first glance but is potentially a residuary beneficiary. Regardless of the relationship, contesting a will is something that should not be taken lightly and should be considered with the utmost importance.
In the case of wanting to challenge a will for failing to make reasonable financial provision, you will need to be financially dependent and usually one of the following: a child, civil partner, spouse or an ex-civil partner/spouse who has yet to re-marry.
At what point can a will be contested?
Contesting a will after probate is still viable, however, it is recommended to contest a will as early as possible. Contesting a will after the probate process can be expensive and require additional legal advice.
Can a will still be overturned after probate?
Yes, if you are able to prove the will is invalid, a will can be overturned after probate. However, contesting a will after probate can bring additional complications and costs. The longer the process is delayed, the more likely the assets will already have been distributed.
Can a will be contested after the estate has been distributed?
Yes, you are able to contest a will even after the estate has been distributed. However, this may prove practically difficult to achieve, especially if the assets have already been distributed.
In this circumstance, you can legally attempt to recover the assets from any beneficiaries. Many difficulties could arise, however, such as if the beneficiaries have spent the money or if the beneficiaries no longer have the money to settle the court costs. For these reasons, you are advised to challenge the will before the grant of probate is issued.
Is there a time limit for contesting a will?
In general, contested probate time limits vary upon the nature of each claim, governed under the Limitation Act 1980. However, as mentioned above, it is advisable to act as quickly as possible before the grant of probate is issued, to avoid further complications. The general time limits for contesting a will are as follows:
- Inheritance Act claim – 6 months from the grant of probate
- Rectification claims – 6 months from the grant of probate
- Beneficiary making a claim against the will – 12 years from the date of death
- Fraud/claiming against an executor for appropriating estate assets – No time limit applies
In the case of making a claim for reasonable financial provision, there remains a time limit of six months from the grant of probate being issued.
How to contest a will?
In circumstances whereby you wish to contest a will, you would preferably enter a ‘caveat’ with the Probate Registry. The Probate Registry are the offices that issue grants of probate and grants of letters of administration. This gives you 6 months to determine whether you have reasonable grounds on which to challenge an ‘invalid will’, which can also be extended.
However, in these circumstances, the executors also have the right to lodge a ‘warning’ to the Probate Registry. If this comes to fruition, you can then further substantiate your ‘caveat’ through what’s called an ‘appearance.’ It is important to note if it reaches this point, unless the parties agree by consent the matter will have to be resolved in court. This of course can lead to extensive legal costs.
Can anybody view a will?
Before the grant of probate has been issued, only named executors are able to view the will. Once issued, the will becomes a public document for anyone to view, if they apply to the Probate Registry.
Is it possible to have a copy of the will before probate?
As mentioned above, if not a named executor, you are not entitled to have a copy of the will before probate has been granted. However, there may be a few instances in which you can consider:
- Writing to the executors of the will – if you have a legitimate claim to view the will, possibly as a residuary beneficiary, you can send a written request to the named executors. They may then approve for you to receive a copy.
- Applying through the courts – By liaising with a solicitor, they would be able to advise on the matter. They will be able to provide accurate advice such as who is entitled to view the will after the death and whether you have grounds for contesting the will through the courts.
- Lodging a ‘caveat’ with the Probate Registry – As mentioned earlier, entering a ‘caveat’ with the Probate Registry before the grant of probate has been granted is one way to challenge a will. In the event of the executors not escalating the dispute with a ‘warning,’ they may allow you to receive a copy of the will before probate.
- Residuary beneficiary – In the event of being a residuary beneficiary you are entitled to view a copy of the estate accounts. These accounts hold a record of all the financial transactions of the estate.
Do you want to contest a will? Seek legal advice today!
If you would like help or guidance on contentious probate, please get in touch with our team of experts at Redkite Solicitors. We are here to help and support you through every step of the process.
We offer a free no obligation initial consultation with one of our specialist team members. Our team of experts will be able to help you identify what are the best available options.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.