If you want to challenge a will, also known as contesting probate, then you’ll need to lodge a complaint within six months of probate being granted. It may go to court if you can’t reach an agreement.
If a loved one has recently passed away and you aren’t the named executor in their will, you might find that the last wishes of the deceased don’t seem fair, or you may have suspicions about whether they are genuine. There are many reasons why you might want to challenge a will, but only some of these will be valid within the law.
Read on to find out what the rules are around challenging a will, and the processes involved.
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Before understanding the rules around challenging a will, you need to understand the term probate. This is the complete process involved in managing a deceased person’s estate. The first thing that will happen as part of any will process once someone dies is that their named executor will apply for probate.
This can be done online, but is better handled by a solicitor – they can understand any nuance in the circumstances and help to make sure there are no errors or reasons for things to be held up.
Once probate has been granted, the executor has control of the estate and can begin the process of contacting creditors, cashing in any life insurance and ultimately, once all accounts are closed and resolved, splitting the remaining estate between the beneficiaries stated in the will.
If you want to challenge a will, you must usually be a close relative of the deceased, either a married spouse (or in a civil partnership) or a child. Live-in partners can sometimes make a claim, provided you’ve lived with the deceased for at least two years and can provide evidence of your close relationship. In select other cases, if you aren’t one of these listed people but you are named within the will, you might have a right to challenge it.
You can’t simply challenge a will for any reason either. There are rules that dictate what constitutes a valid claim against a will.
One of the most common is if you are a direct beneficiary that would normally be due inheritance, but you have either not been included in the will, or you feel you can argue that you’ve not been provided for adequately – for example, if you have an equal sibling in your exact same circumstances and they have been given an unfairly larger amount than you.
Alternatively, you’ll need to prove that the will was invalid. This can be tricky, depending on your reason for believing it should not stand as a legal document. Firstly, you may believe that the will was forged, either completely new or as an update to an existing will. To do this, you’ll probably have to rely on handwriting experts to show that the signature on the will was not that of the deceased.
Alternatively, you might be arguing that the deceased was not of sound mind when they made the will. It’s not terribly uncommon for anyone older to have cognitive thinking problems, and if they have an illness that impacts their ability to think clearly then, any will be made after their diagnosis maybe not considered a valid representation of their true wishes.
In some extreme cases, you might be able to show that a will was made under duress. If someone – perhaps a newly married partner – has ‘encouraged’ a will to be updated in the latter months of a parent’s life, then you might be able to show evidence that the will was changed without complete free will, and therefore not in line with the actual wishes of the deceased.
In order to challenge a will, you’ll need to hire a solicitor. They’ll firstly examine the will and write to the executor to show an intent to challenge. If the issues can’t be resolved immediately, then your solicitor and theirs will arrange a period of mediation.
This is where you try to resolve the matter before it ends up in court. It may take the format of an in-person meeting, or it may be conducted via letters. It’s in your best interest to try and resolve the issues at this stage unless you’re up against an executor who you know is acting incorrectly but refuses to budge.
Most cases are resolved at mediation, because it allows you to lay out the reasons you believe the will is invalid, and in most cases, you’ll either be argued against to your satisfaction or the executor will realise that they’re unlikely to win, and wish to avoid further action. Costs will only increase if the case goes to court.
Indeed, in a famous probate trial, the judge has gone on record at expressing his astonishment that a case was allowed to carry on into court for so long, ultimately resulting in legal costs over £74,000.
Even if you have a fair belief that you will win, you must be absolutely sure of it before you get to court otherwise a trial could end up costing you many thousands of pounds in both yours and the executor’s legal fees if the judge finds against you.
Regardless of when the matter is settled, if you can prove the will is invalid, then either probate will be transferred to you, or the judge will declare what is to happen with the management of the estate.
The process of challenging a will can vary, but it’s important that you start it right away. If you don’t act quickly once probate has been granted, it may be too late, especially if they have already started paying out the estate. You should also let the executor know that you intend to challenge so that they can pause proceedings and not distribute the estate until everything has been resolved.
In most cases, it will take between 3 and 6 months to complete a challenge of a will. If, however, it goes to court and a trial because you aren’t able to resolve things as part of a mediation process, then you could be looking at much longer – a year or sometimes more.
The costs involved in challenging a will also vary depending on the complexity of the estate and the challenge you are making. There’s no definitive cost, and you might not need to pay anything if it goes to court and can be proven that the executor is acting completely illegally or against the wishes of the deceased.
In most cases, you’ll at least be responsible for your own legal fees, which start at around the £500-£1,500 level if a case is resolved before mediation but can rise into several thousands of pounds the more work is required.
That’s why it’s important you work only with a reputable solicitor who can tell you whether you have a likelihood to win the case. It would be pure folly to chase a lost cause and potentially end up liable for both your own and the executor’s costs.
Here at Money Savings Advice, we have partnered with some of the UK’s leading Contested Probate claim management companies. They have already helped thousands of people make successful probate claims and they can do the same for you.
Choosing an independent claims management company means they won’t proceed with a claim unless they are sure it is in your best interests. They are also regulated by the FCA, which gives you an additional layer of protection.
If you would like to speak to one of these claim management companies who can help you make a probate claim, then click on the below and answer the very simple questions.
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