How to contest a will (and get the inheritance you deserve)

Will

What do Paul Daniels, George Michael and Lisa Marie Presley have in common? For one thing, their deaths were all followed by high-profile inheritance disputes.

It is not just celebrities and their families who can end up in a war of words over what has – or hasn’t – been left in someone’s will. Disputes over wills have been on the rise for a number of years, thanks to factors like increased asset wealth, more complicated family set-ups and squeezed finances.

“Modern family dynamics, as a result of second marriages and stepchildren or half brothers and sisters, often pave the way for more complicated and contentious estates when someone dies,” said Katherine Pymont, of law firm Kingsley Napley.

It can be upsetting to find out you have been excluded from a loved one’s will, but you need to act fast if you think there has been a mistake.

Here, Telegraph Money explains on what grounds you can contest a will, and how to go about it.

What are the grounds for contesting a will?

English law asserts the importance of respecting the wishes of the deceased set out in their will, even if you disagree with their decisions. As such, we’ve set out some advice on how to bulletproof your will, to stop any meddling taking place after you die.

That being said, sometimes wills do go wrong, and in these cases you might have grounds to contest it.

Anyone – such as a relative, partner or an ex, or business partner – can challenge a will if they believe they have a valid claim to the deceased’s estate.

For example, say you feel you have been missed out of someone’s will by mistake, or that the person writing the will has incorrectly given too much money or assets to someone else.

It’s a good idea to get specialist advice before making a challenge, as wills can only be contested under a few specific circumstances, and you’ll need to follow certain timeframes to make your challenge count.

Now read: Fights over inheritance are rife – here's how to bulletproof your will

The deceased did not have required mental capacity

Firstly, you could make a testamentary capacity challenge. This requires you to raise concerns that someone did not have full mental capacity when they made the will, or did not understand what they were signing.

If you manage to raise suspicion that the person who made the will lacked capacity – and you’ll need some evidence to do this – then the burden of proof falls to those seeking to prove the will that the deceased was of sound mind.

There was “undue influence” over the contents of the will

If you believe someone was coerced into writing the will, you can bring a claim for undue influence.

It’s on you to provide evidence that there is no other reasonable explanation for the will to be as it is unless the deceased was coerced into making it, or some terms within it.

The deceased did not fully understand the terms of the will

If you’re concerned that the deceased would have been unable to understand the terms of the will they’d signed – for instance, because they were hard of hearing, had impaired vision, or perhaps low levels of literacy – then the court may ask those seeking to prove the will to provide evidence that they understood the will’s terms and approved what it contains.

The will has errors or is unclear

David Robinson, of legal firm Wildcat Law, said he has seen examples where individuals have been incorrectly named or not clearly identified, so you could also argue a will is unclear. The court will usually try to rectify any errors to reflect the intentions of the deceased.

The will has been forged

If you don’t believe a signature on the document is genuine then you could also claim the will is fraudulent, which would render it invalid – but you might need to get the opinion of a handwriting expert.

Another option is “fraudulent calumny”, added Mr Robinson. “This is where a person has poisoned the mind of the testator resulting in them removing a person or persons from the will,” he said. “This is an area where we have seen an increase in enquiries.”

The biggest challenge is providing the evidence to prove these claims.

“Contesting a will in the UK can be a complex process and typically requires legal assistance,” said Rachael Griffin, tax and financial planning expert at Quilter.

“Like any legal matter, having clear documentation that supports your claim might be the critical piece of information that helps you win. Keeping files of everything can pay dividends.”

Nick Horton, head of will, trust and estate disputes at Thomson Snell & Passmore, said this is only worth doing if the provisions of an earlier will, or the intestacy rules on who inherits assets when there is no clear legal document, “are significantly more beneficial to you.”

Making a provision claim

Rather than challenging a will, individuals – including children of the deceased, former spouses and ex – can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for “reasonable financial provision” if you feel you haven’t been left enough money.

Being merely disappointed by the amount of your inheritance usually isn’t enough to make a claim, said Ms Griffin – you usually need to be in some form of financial need.

“If you were financially dependent on your ex-partner, or if you have children together, you may have certain right,” she added.

“If you were married and your divorce settlement includes provisions for maintenance, these may still apply.”

If an ex-partner and the deceased were not married and shared a property when they were together, but the ex-partner has not been given any claim of the property in the will, it may be worth considering a claim under the Trusts of Land and Appointment of Trustees Act (TOLATA).

This lets a court decide on ownership of the property, and who can remain living there – rather than just sticking to the terms set out in a will.

Act fast

There are different time limits depending on whether you are making an Inheritance Act claim or directly challenging the will.

Financial provision claims must be raised within six months of probate (the official administration of the estate) being granted.

Some lawyers advise getting a £3 legal document, known as a caveat, filed beforehand to stop assets being distributed while you resolve any claims.

There’s also a six-month limit to point out any errors that need to be rectified.

You have longer to challenge the actual validity of the contents of a will and to bring a claim against the estate, where counters can be made up to 12 years from the date of death

There is no time limit for fraud allegations regarding how the document was written or signed and the way it is administered.

Lawyers can help decide if you have a valid claim, but you can save some money and hopefully some family stress by dealing with your issues outside the courts using independent mediation services to settle disputes.

Another option outside of courts and mediation is to use a deed of variation.

This lets beneficiaries alter the terms of the will if everyone agrees, but Ms Griffin cautions that it is important to seek advice over any tax or legal consequences that can crop up as a result.

Now read: What is probate? How it works and how to execute a loved one’s will