Contesting a Will


16 April 2018

By Justin Emerson

There are increasing numbers of people dissatisfied with the provision made for them by family members within their wills. More and more people are looking to challenge wills. But the vast majority of wills still pass through the probate process without any problems.   Wills may be challenged in certain limited circumstances.  These include where:

The will is not validly executed, for example, the will was not signed or acknowledged in the presence of a minimum of two witnesses who were present at the same time.

  • The will was made as a result of undue influence, coercion or duress.
  • The person making the will lacked the necessary mental capacity.

If a will is "set aside" (ie the current will is deemed to be invalid) then the deceased's estate will be distributed under any previous valid will. If there is no previous will then the estate would be distributed pursuant to the intestacy rules, which set out a strict order for distribution to family members.  Therefore before you try to challenge a will it is necessary to consider what will happen to the estate if you are successful. What are the provisions of any previous will? Will your receive any benefit under the intestacy rules?

In the event a will cannot be challenged, or you will not benefit under a previous will or the intestacy rules, then it may still be possible to apply for reasonable financial provision under the Inheritance (Provision for Family & Dependants) Act 1975.  Claims may be made by a number of parties including cohabitees and adult children.  Such claims are never straightforward but can be pursued successfully in the right circumstances.

In the event you are not happy with the provision made for you under a will Gepp and Sons can help you to identify the options available to you. We will be able to advise you at an early stage whether you are able to attempt a challenge. We will also help you try to achieve the outcome you want in the most cost effective way possible.

This is not legal advice; it is intended to provide information of general interest about current legal issues.