Most wills are fairly straightforward to handle. Most don’t come as a surprise. So what is a contest of a will?
In short, a contest happens when a will is very different to what you – or someone else – might have reasonably expected it to be.
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Here is everything you need to know about what happens if you or someone else is considering contesting a will:
What Is A Contest Of A Will?
A contest of will is the process through which the validity of a will left by someone who has passed away can be challenged.
Contesting a will is not something that should be done on a whim. It can be an expensive and time-consuming process. You also need to have a very good reason for doing so as far as the law is concerned – and be one of a select group of people in relation to the deceased.
Who Can Contest A Will?
Only certain people can contest a will. These tend to be limited to one of the following groups:
- Related to the deceased – some type of close relation (the most common example being the deceased’s partner, former partner, or child) and/ or a financial dependent.
- Mentioned in a previous will – someone listed as a beneficiary in a previous version of the will.
- A residuary beneficiary of the will – someone who might receive property or assets from a will that isn’t specifically left to someone else.
What Are The Grounds For Contesting A Will?
It is also important to be aware that you cannot engage in the contesting of a will without a valid reason to do so. These reasons tend to be limited to:
1) Lack Of Testamentary Capacity
The first and most common reason to contest a will is the belief that the person who left the will did not have the testamentary capacity to create it. This is broadly defined in law as the ability to understand what a will is and the effect the will would have.
This covers a wide range of issues, including but not limited to situations where the person making the will might have:
- Not understood how much property or assets they owned
- Had a mental disorder that made it difficult for them to understand what was happening
- Been very frail or physically impaired to the point they could not understand
- Had a low level of literacy
- Been hard of hearing, visually impaired, or found it difficult to communicate
2) Undue Influence Or Coercion
Other grounds for contesting a will include situations where it is believed that someone else exerted undue influence on the person leaving the will or coerced them into writing it.
While this is a perfectly legitimate concern, it can be very difficult to prove to a court’s satisfaction. You will need to somehow convince the court that coercion or influence is the only reasonable explanation for the will being as it is.
Making allegations like this is potentially dangerous too. It is much like accusing someone of fraud. If your effort fails, it can come back to bite you.
3) Forgery
It is a rare thing to actually happen, but suspicion that a will is a forgery is grounds for contesting a will.
Proving that the will is or is not genuine will require a handwriting expert with samples of the deceased’s handwriting and/ or a deeper investigation.
4) Rectification
Rectification covers technical errors or failures of understanding on the part of the person – usually the will solicitor – who actually wrote the will.
This will require a careful professional review of the solicitor’s files and a statement that details the solicitor’s original understanding of the wishes of the person who died. If successful, the court will rectify the will to reflect the deceased’s actual wishes.
In these cases, it is not impossible that the solicitor did understand what the deceased intended but did not apply the law correctly. This won’t result in rectification. However, you may be able to claim against the solicitor for professional negligence.
5) Reasonable Provision
This covers cases where someone believes that the person who left the will has failed to make reasonable provision for someone they were legally obliged to support.
The most common examples are the deceased’s spouse or a child they were financially supporting.
What Happens If Someone Contests A Will?
There are different processes for contesting a will in different parts of the UK. Scotland, in particular, has its own system.
Do be aware that there is no guarantee that the decision the court makes if the will does prove invalid will benefit the specific individual contesting the will. The usual result is that the court simply reverts to the most valid recent will.
If there is no previous will, it could be the Rules of Intestacy (a sort of default will) that are followed. The Crown could even benefit from the will if there are no living relatives.
How To Contest A Will
If you are worried that the will of someone close to you who has passed away does not reflect their wishes, the first step is to speak with an expert right away.
You will need to enter what’s called a “caveat” with the Probate Registry. They may take up to six months to reach a decision as to whether you have valid grounds to contest a will, so it’s best to apply fully informed.
The situation needs to be investigated before too much of the estate has been administered. The longer you wait, the more time that – for example – the memories of potential witnesses to any nefarious activities will have to fade.
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