How do you contest a will in the UK? A step-by-step guide

The death of a loved one is always going to be a difficult and upsetting time. If you do not agree with an aspect of the deceased person's will and decide to contest it, the situation can feel even more challenging.

Our step-by-step guide below will help to give you an overview of what to expect when navigating the often complex process of contesting a will.

The key steps of contesting a will explained

There are certain conditions that must be met in order to contest a will. We'll cover all of that in this guide, as well as running through the process and what to expect at each stage.

Though there are no strict time limits for challenging a will's validity, it's important that claims are made before the distribution of the deceased's estate. You can contest a will after distribution of the deceased's assets has taken place, but it tends to be riskier, more difficult, and more expensive. If you wish to challenge a will, you should start as soon as possible.

Seeking discreet legal advice at an early stage is the key to making sure that you have valid grounds to challenge a will. At Rudlings, we know that contesting a will can be a highly emotional experience. We'll listen to your concerns, and provide you with clear guidance, in plain English, to help you to begin the legal process.

Step 1: Seek legal advice

It is important to establish whether you have valid grounds for your contested probate claim. To contest a will, you must have what is known as 'legal standing'. This means that you must have a clear interest in the outcome of the will, either as a beneficiary, or via the laws of intestacy if there is no last will. You cannot only contest a will because you are unhappy with the deceased's wishes.

You can contest a will if you are one of the following with regard to the deceased person:

• a spouse or civil partner

• a beneficiary under a previous will

• a former spouse or civil partner who has not remarried or had a new civil partnership

• a cohabitee (living as married) for at least 2 years before death

• a child of the deceased, including those who are treated as a child of the family

• a financial dependent.

Our specialist solicitors can help you to decide whether you are in a position to begin a claim.

Step 2: Identify the legal grounds for contesting the will

One of the factors below must apply to you in order for you to bring a claim.

• Lack of valid execution: if you think that a will could be deemed invalid because it fails to comply with the necessary legal formalities. A will must be signed by the testator (will maker) and witnessed by two independent witnesses in order to be valid.

• Undue influence: if you suspect that someone had such influence on the deceased that they were able, through persuasion or coercion, to convince the deceased to change an existing will in order to benefit themselves. This route involves demonstrating clearly that the will was made under suspicious circumstances.

• Lack of testamentary capacity: if the testator did not have sufficient mental capacity to make a will at the time the will was drawn up. This may apply in cases where mental capacity is in question due to medical conditions such as dementia.

• Reasonable financial provision: if you were financially dependent on the deceased. Under the Inheritance Act, if you received financial maintenance, which you relied upon, from the deceased, you may be able to argue a claim for reasonable financial provision. In this case, you'll need to start your claim within 6 months of probate being granted. If more than 6 months have passed, you may need to apply to the court for permission to claim reasonable financial provision.

• Fraud or forgery: if you suspect there is no valid will due to fraud or forgery. There is no time limit for contesting a will on the grounds of its validity.

• Proprietary estoppel claims: if the deceased promised something that you relied on to your detriment, which they then failed to provide in the will.

Step 3: Gather supporting evidence

You may need to provide a significant amount of evidence to support your claim, particularly if you are claiming that a will is invalid. The evidence required may include medical records, other medical evidence, and witness statements, particularly if it involves testamentary capacity or undue influence.

Our probate lawyers can provide expert legal advice to help you to assemble the necessary documents

Step 4: Enter a caveat to pause probate (if necessary)

If you are contesting a will, you will need to file a caveat at the Probate Registry in order to temporarily pause the probate process. This will give you time to investigate and put together your claim. Your solicitor can explain how and when to do this. It's important to note that if you are not a named executor in the will, you won't be able to view the will before probate has been granted.

Step 5: Attempt to resolve the dispute

Trying to resolve the dispute outside of court can help reduce litigation costs and preserve relationships between family members who have come into conflict over the contents of a will. Alternative dispute resolution pathways such as mediation can save everyone time, money, and further distress.

Step 6: Enter court proceedings (if the dispute cannot be resolved)

This step will occur if the dispute cannot be resolved outside of court. This can take between 6 and 12 months to schedule, and several weeks in court to resolve.

Step 7: Reach a resolution for distribution of the estate

When the court has decided on the outcome of your case, they will lay out a resolution with details of how the estate shall be distributed. The court will also make decisions regarding the payment of legal fees, depending on who has been successful in the case and who has not, and on other factors specific to the legal challenge itself.

FAQs

How long does it take to contest a will?

It depends on the details; how long it takes to mediate and agree on an outcome, and whether the case goes to court or not. The process can take anywhere from several months to several years.

How expensive is it to contest a will?

The cost of contesting a will varies hugely depending on particular circumstances. It can range from around £750 up to £2,000 if the issue is resolved through an initial agreement. However, costs can escalate when mediation is required, and will of course be significantly higher if the case goes to court.

Who pays to contest a will?

If you lose the case, you will usually be required to pay the winner’s costs. This is subject to the discretion of the judge in your case. There are two exceptions. Firstly, if the deceased made a mistake that caused the issue, then costs can be recuperated from their estate. Secondly, if the claimant was unsuccessful, but there are proven justifiable reasons to doubt the will, then the court may rule that each party must pay their own legal costs. Funding arrangements may be available to some clients in some circumstances; your probate solicitors will discuss this with you early on in the process.

Can siblings contest a will?

You can contest an unequal will if you are a child of the deceased and they have left you less than your siblings, if you have either benefitted under a previous valid will, or would benefit under intestacy rules. You also need to have legal grounds to challenge the will, such as those listed earlier in this article.

Is it worth contesting a will?

This really depends on a lot of different factors. When deciding whether to contest a will, consider whether you have good, solid reasons to suspect its invalidity. Look carefully at whether you stand to benefit enough to justify the expense, and how you will pay the court fees and legal costs if you are unsuccessful. It is also important to consider whether family relationships could be damaged permanently from the process. In our experience, contesting a will can place huge emotional strain on families, and can lead to ongoing conflict long after legal proceedings have ended.

Speak to our specialist lawyers for support with contentious probate

Our probate solicitors are here to listen and to offer clear, actionable advice.

 Contact us to ask about contesting a will, or visit our disputes resolution page for more information.