Contesting a will - FAQs and Jargon Buster
What is a will?
A will is a document in which someone states how they wish their estate to be distributed upon their death
What happens when there is no will?
If there is no will, the rules of Intestacy will apply.
If you would like to know more, a helpful guidance can be found on the Government website: https://www.gov.uk/inherits-someone-dies-without-will
What happens if a child if left out of a will?
The child can consider making a claim against the estate. Claims under the Inheritance Act- Birkett Long Solicitors
Can I get a copy of a will?
Once a Grant of Probate has been issued, the will becomes a public document so anyone can obtain a copy. Before then, it is generally up to the executors of the will who receives a copy.
What is mediation?
Mediation is a form of Alternative Dispute Resolution where a mediator helps the parties try to reach an agreement. Alternative Dispute Resolution: how to avoid family court- Birkett Long Solicitors
What is a grant of probate?
A Grant of Probate is a document issued by the Probate Registry which confirms the executor’s authority to deal with an estate when there is a will.
Can an executor change a will?
No, an executor’s duty is to follow the terms of the will.
Can I contest or challenge a will?
A will can be challenged in certain circumstances. Please contact us to discuss your individual situation. An article about the ways a will can be challenged can be found here Ways to challenge a will - Birkett Long Solicitors
Can I dispute a will after probate?
Yes a will can be disputed after a grant of probate has been issued. We usually recommend doing it before as after a grant of probate has been issued, there is a risk that the estate assets have been distributed. Assets can sometimes be traced and recovered, but not always. Therefore, disputing a will after probate can be done, it just may be more complicated.
Can I make a claim against an estate?
There are a number of situations in which a claim can be made against an estate. Please contact us to see if you could make a claim.
How do I begin the process of contesting a will?
The first thing to do is determine on what basis you are going to challenge a will as the next steps will depend on the ground you are challenging the will. This can include making a Larke v Nugus request, obtaining medical records, speaking to witnesses of the will and other people who knew the deceased.
How do I stop a grant of probate?
You can stop a Grant of Probate being issued by entering a caveat. However, this should only be done if there are concerns about the validity of a will and there can be consequences of entering a caveat, so we recommend you speak to us before doing so.
What is a Larke v Nugus request?
A request made to a solicitor asking a list of questions about the circumstances in which a will was created.
What is a caveat?
A caveat stops a grant of probate being issued whilst investigations into the validity of the will are made.
How can a caveat be removed?
If a caveat has been entered incorrectly (for example, if there is no real dispute about the validity of the will) then a warning can be issued. If this is not responded to, the caveat is removed and the grant of probate will be issued.
What is an appearance?
If a warning is entered against a caveat, the person who put the caveat in place can enter an appearance to the warning setting out why they believe the will is invalid. The caveat is then made permanent and can only be removed by agreement, or by way of a court order.
What is Larke v Nugus request?
A Larke v Nugus request is set of questions sent to a solicitor who prepared a will aimed at determining whether the will is valid.
How long do I have to contest a will?
There is no time limit to contest the validity of a will. However, we recommend you seek advice quickly as if the estate assets have been distributed, it can make recovery them more difficult if the will is later declared invalid.
How long do I have to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
Claims must be brought within 6 months of the Grant of Probate. A claim can be made after then, but permission to do so is required from the court.
How long will a claim take?
Claims usually take between 6 months – 2 years. Each case is very different so it depends on how complicated the facts are, and whether an agreement can be reached with the other side.
How do the courts decide whether or not a will is valid?
The court will look at the evidence before it, which can include witness evidence, documents and expert evidence on things such as the deceased’s mental capacity or whether the will was a forgery. The court will then decide on the balance of probabilities whether the will is valid or invalid in accordance with the law. The legal test applied will depend on which ground the validity of the will is being disputed. The starting point (i.e. that the will is valid, or that the will is invalid) depends on the ground the will is being disputes and can depend on the individual circumstances of the case.
Can an executor change a will?
No an executor cannot change a will. The executor’s responsibility is to administer the estate in accordance with the will. If they do not, they can be removed and possibly have to reimburse the estate for any losses or incorrect distributions.
Who pays the costs of contesting a will?
The usual rule is that the looser pays the winner’s costs. However, this can change so it depends on the individual circumstances of the case.
How much will it cost?
Each case is very different and this means the costs are. The factors that affect costs are:
- how complicated the issues are
- how many parties are involved
- Whether an agreement can be reached with the other side
- If we have you chase you for instructions or chase other people to respond to us
- If we need to instruct an expert or a barrister
- The amount of documents
- If the other parties are legally represented
- How long the matter goes on for
Will I have to go to court?
95% of cases settle without court proceedings becoming necessary as we usually settle cases through correspondence or mediation. Even if court proceedings are started, the parties often reach an agreement before the trial takes place.
