How do I contest a will, and should I?

If you have concerns about a close relative’s will following their death, you may be able to challenge it. It is in no way an easy undertaking, but it is possible to do so with the right legal assistance if you have sufficient grounds. 

For example, you might feel that the will does not properly follow their wishes or that someone close to them exerted undue influence over them. 

There are also rules and a strict time limit for making claims.

On what grounds can a will be contested?

A will may be contested in the UK on the following legal grounds:

• Lack of testamentary capacity: The deceased must have been sufficiently mentally sound to make the will at the time it was written.

• Undue influence: Someone pressured the deceased to make certain changes or provisions to their will in their favour.

• Forgery or fraud: Someone faked the deceased's signature on the will, for example.

• Want of due execution: An admin or clerical error means that the will may be challenged.  

How do I contest a will?

You may be able to challenge a will if there is a mistake or error in it, whether this is of a clerical nature or a general misunderstanding of the deceased’s wishes. You may make a claim under section 20 of the Administration of Justice Act 1982. 

If you feel you have been treated unfairly in the will or not provided for, you may also claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

However, under both these acts, a claim must be made within six months of the granting of probate. 

If you are making a claim about undue influence on the deceased or their mental capacity, the court will also need to know what their mental state was when they completed their will.

If you do consider contesting a will, make sure that you specifically consult solicitors who specialise in dealing with contentious probate issues. 

Do I have the right to contest a will?

Not everyone has the right to contest a will – it will depend on your relationship with the deceased.

You must have a vested interest in the will, so you should be a close relative, spouse, cohabitee, or someone mentioned expressly in the final will or a prior one. 

What about ‘broken promises’?

If you were previously promised property or money from the deceased and this has not been included in their will, you may be able to make a claim for it. This is known as ‘proprietary estoppel,’ or ‘broken promise.’

The court will expect you to be able to prove you were promised this gift, that you relied upon this promise being kept, and that if it is not, you will be at a disadvantage. 

What are the pros and cons of contesting a will?

You will need to think carefully about whether it is worth doing so – both from a financial and personal point of view.

Contesting a will is likely to be expensive in terms of legal fees, draining emotionally, and may also create division within your family. You will need to decide whether the ultimate goal is worth the upheaval, expense and risk of losing the case. 

In some cases, lawyers say, it may simply not be worth the trouble of pursuing a claim, no matter how upsetting or financially challenging it may be to have found yourself left out of a will. 

Solicitors also advise that, if you do decide to go ahead with a claim, you should have a good idea of what it is that you want to achieve financially. So, for example, securing a set amount of the estate. 

The court will also want to know about the deceased’s physical and mental state when the will was composed, as well as details of their financial affairs.

The court will also want information on what the deceased said to anyone about the will at the time it was completed, as well as the status of their relationships with loved ones and family members.

The difficulty is that you may not have much information available about these details, especially if the deceased became isolated from their loved ones, and other parties may not wish to help. 

As such, around 95% of challenges to wills are often settled out of court.

How much will it cost to contest a will? 

The legal fees to challenge a will could be as little as £500 or as much as £150,000. It all depends on how the dispute is resolved. Sending an initial solicitor’s letter contesting the will, for example, might cost between £500 and £1,500 plus VAT. 

However, if the parties involved do not agree to settle the dispute based on this letter, the next step is commonly mediation. This could cost anything between £7,500 to £10,000 plus VAT, according to lawyers. 

If this stage is unsuccessful, the next step is court proceedings, which can cost between £15,000 and £20,000 plus VAT, while a full trial can cost around £150,000. However, only a small number of contested will cases proceed to trial, and most are settled out of court. 

If the case proceeds to trial, the losing party has to pay costs. You might wish to check if you have legal cover included as part of an insurance policy or with your bank account. It is unlikely that legal aid will cover the costs incurred, however. 

Some solicitors also offer deferred fee arrangements, where the fees are paid at the end of the process.

There’s also the option of a conditional fee (no win, no fee) or damage-based fee agreements in which certain fees only become payable if the claimant wins, and are then paid out of the compensation awarded.

Speak to your legal counsel to find out what the financial options may be. 

Should I contest a will? 

Making the decision to challenge a will is not to be undertaken lightly and is likely to prove expensive and emotionally draining. 

However, you may feel that the pros outweigh the cons, especially if a large fortune is at stake or you feel that your relative was taken advantage of or unduly influenced. 

Ultimately, you and your legal counsel must decide whether a claim is worth pursuing and if it would be financially viable, depending on the value of the estate.