How to Plan for Contested Wills

Contesting a will is a serious legal step that can arise when someone believes a deceased person's final wishes, as expressed in their will, are invalid or unfair. In England and Wales, this area of law-commonly referred to as contentious probate-covers both challenges to the validity of the will itself and claims for financial provision under statutory rights. This comprehensive guide explains how contested wills arise, the legal grounds for challenge, the processes involved, practical steps for preparation, and key risks and time limits you should understand.

What Is a Contested Will?

A contested will refers to any legal challenge brought after someone has died that disputes either:

• The validity of the will itself (for example, due to concerns about how it was made), or
• The adequacy of financial provision for certain relatives and dependants under the Inheritance (Provision for Family and Dependants) Act 1975.

Contested will processes typically take place in the Probate Registry or, for complex validity disputes, the High Court (Chancery Division) if earlier steps do not resolve the matter.

Who Can Contest a Will?

Validity challenges:
Anyone affected by the terms of a will may potentially challenge its validity if they have good reason. There is no strict statutory definition of “affected,” but claimants must show their interests are harmed by the will's terms and that there are legitimate legal grounds for a challenge.

Financial provision claims:
Under the Inheritance (Provision for Family and Dependants) Act 1975, only certain categories of people can make a claim. These include:

• Spouses or civil partners
• Former spouses or civil partners not remarried
• Children of the deceased
• Cohabitees who lived with the deceased for at least two years
• People financially dependent on the deceased

There is no requirement to be named in the will to bring a financial provision claim, but you must fall into one of these statutory categories and show the will does not make reasonable financial provision for you.

Common Grounds for Challenging Validity

A will may be contested on several legal bases. These are distinct from claims for financial provision and focus on whether the document itself should be upheld:

1. Lack of testamentary capacity
   A testator must have the mental capacity to understand their estate and the effect of the will when they sign it. The legal test, established in Banks v Goodfellow (1870), remains the foundational standard. Expert medical evidence is often needed to support such claims.
2. Lack of due execution
   For a will to be valid, statutory formalities must be met: it must be in writing, signed by the testator and witnessed by two independent witnesses present at the same time. Failure to comply may make the will invalid.
3. Lack of knowledge and approval
   Even if formally executed, if the testator did not understand or approve the contents-perhaps due to misrepresentation or misunderstanding-it may be set aside.
4. Undue influence or duress
   If a person was coerced or pressured into making a will or including particular terms, this may invalidate the document. These claims require evidence of actual undue influence.
5. Fraud or forgery
   A forged signature or fraudulent alterations to a will render it invalid. For this reason, there is no strict deadline for such claims, but delay makes evidence harder to gather.

Time Limits and Practical Deadlines

Understanding time limits is essential when planning to contest a will:

Inheritance Act Claims

• 6 months from the date of the Grant of Probate is the standard deadline for a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Missing this window can permanently bar your claim unless the court exceptionally permits an extension.

Validity and Other Grounds

• There is no strict statutory deadline for challenges based on lack of capacity, undue influence, or forgery. However, unreasonable delay can make successful litigation difficult and risk the claim being struck out. Catching evidence early is important.

Rectification Claims

• Claims to correct or interpret will terms (for example, clerical errors) usually must be brought within six months of Grant of Probate.

Step‑by‑Step Planning

1. Assess Your Grounds and Eligibility

Before taking action, carefully assess whether you have legal grounds and standing to contest the will. Consulting a solicitor experienced in contentious probate is crucial. Solicitors can advise on whether lack of capacity, undue influence, lack of due execution, or a financial provision claim is appropriate.

2. Gather Evidence Early

The strength of your claim depends on evidence. Consider collecting:

• The contested will and earlier versions
• Medical records (for capacity concerns)
• Correspondence or witness accounts of circumstances surrounding the will's signing
• Financial and dependency information if making an Inheritance Act claim

3. Consider Temporary Freezing of Probate

If probate has not been granted, you may apply for a caveat with the Probate Registry to prevent the grant being issued while you prepare your claim.

4. Explore Alternative Dispute Resolution

Mediation or negotiation can resolve disputes without full court proceedings. This can reduce cost, delay, and emotional strain.

5. File Legal Proceedings

If negotiation fails, your solicitor will issue proceedings. For Inheritance Act claims this means issuing a claim form at the appropriate court within set time limits. Proceedings for validity challenges may follow pre‑action steps and lead to hearings.

Costs and Financial Considerations

Contesting a will can be costly, and legal fees are usually not paid automatically from the estate. Costs vary depending on complexity, evidence requirements, and whether the case settles or goes to trial. Early discussion with your solicitor about likely costs, funding options, and potential cost consequences is crucial.

Many claims settle without full court hearings, particularly where early evidence convinces other parties of the claim's merits.

Risks and Challenges

• Delay in acting can weaken evidence and reduce your chance of success.
• Distribution of assets makes recovery after probate more difficult.
• Emotional and family strain is common in contested will cases, particularly where disputes relate to personal relationships.
• Failure to meet time limits can permanently bar financial provision claims.

Common Questions from our Readers

Can you contest a will after the person has died but before probate is granted?
Yes. You can apply for a caveat to delay the grant and prepare a claim.

Does disagreeing with your inheritance count as a valid challenge?
Not on its own. You must have legal grounds such as lack of capacity, improper execution, undue influence, fraud, or an Inheritance Act claim.

What happens if you succeed in a validity challenge?
If a will is declared invalid, the estate is distributed according to an earlier valid will or, if none exists, the intestacy rules.

Key Takeaways

Planning for a contested will in England and Wales requires:

• Understanding the distinct legal grounds for challenge.
• Acting promptly to preserve evidence and meet strict statutory deadlines.
• Consulting a solicitor experienced in contentious probate.
• Exploring negotiation and mediation as alternatives to full litigation.
• Being aware of the costs, risks, and complexities involved.

Careful preparation and early advice are critical to navigating contested wills effectively and protecting your legal rights.