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Contesting a will: when and how you can make a claim

Wills are legal binding documents, but they can be challenged under certain rules  - Getty Images 
Wills are legal binding documents, but they can be challenged under certain rules - Getty Images

If you feel you have been unfairly disinherited, you suspect foul play, or a family member lacking mental capacity left their fortune to a questionable beneficiary, the law allows you to contest a person’s will.

Without proper legal advice many people make elementary mistakes when writing their wills, which may mean a challenge can be brought by other potential beneficiaries further down the line.

In the UK people are largely free to leave their assets to whoever they like. This is in contrast to much of continental Europe, where laws of succession mean it is virtually impossible for French parents, for example, to disinherit a wayward son. There are restrictions though, and there are several grounds for a will to be contested or set aside.

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Here is a quick guide on the grounds for contesting a will and how to make your complaint.

Capacity

In order for a will to be valid in the eyes of the law, the person making the will needs be of sound mind.

They must understand that they are making a will and the effects of its contents. They have to be clear of the nature of their estate and its value, and understand the consequence of excluding certain people from the will.

Crucially, they must not be suffering from any disorders of the mind such as dementia, which may have undue influence on their decision making and lead to them making gifts they otherwise would not have made.

Read more | Estate planning
Read more | Estate planning

Lack of execution, knowledge and approval

A will is a formal legal document. While you can write it yourself, it needs to be done properly, signed and verified by two witnesses who also need to sign.

You can contest if there is evidence a will has not been properly put together.

You can also make a claim if you believe someone was unaware of the contents of the will, or that they would not have approved if they had been.

Suspicions may arise where there is a substantial gift to the person who helped put the will together.

Undue influence and fraud

A will can be set aside if you are able to prove that someone was coerced into making or changing a will.

The same can be said if you suspect there is fraud involved. Examples of fraud include someone faking a signature or document.

However, the law can also define fraud as lying. For example, A could make up the fact that B stole from C. If C then excludes B from her will based on that lie, the will could be invalidated because of A’s fraud.

Negligence

Estate planning can be a very complex process and mistakes get made. You can contest a will if somewhere along the way a clerical error is made, resulting in the wishes of the deceased becoming unclear.

You can claim where there is evidence of negligence in the drafting of the document, or where specific wishes are unclear. A court may ultimately decide what the exact meaning of the will may be.

Making a claim

If you think you have grounds for complaint then it is important to move quickly, preferably before probate is granted. The longer you take to lodge an action the weaker your case will be when it comes to court. Initially the costs are relatively low. If you feel you have cause to challenge a will, seek specialist legal advice as soon as possible. You can pay a small administration fee to lodge a "caveat" at the Probate Registry.

If the beneficiaries do not think there are grounds for complaint they can issue a short document known as a "warning". This sets out their reasons for objecting to any claim. Then the person contesting the will, having received legal advice, can determine whether to proceed further.

At this point they lodge an "appearance" – another short document. If no agreement is reached then probate process – the gathering up and distribution of the estate in line with the will – will begin.