A deceased person’s last Will and testament is not valid if any of the following apply:-

• The Will does not comply with the legal requirements prescribed by the Wills Act 1837. That includes the need for the Will to be in writing and signed by the person making it (known as the testator) in the presence of two witnesses, who also sign the Will in the presence of the testator and each other.
• The testator lacked mental capacity (known as testamentary capacity) to make the Will. There is a longstanding legal test for capacity set down by the court in the case of Banks v Goodfellow (1870).  Medical evidence will be essential.
• The Will resulted from the testator being unduly influenced into making it, through pressure or coercion. There is a related ground of “fraudulent calumny”, where a testator is tricked into making a Will based on lies.  The burden of proof rests on the person asserting the allegation.
• The testator did not know and approve the contents of their Will. If the contents of the Will and the circumstances of its preparation and signing “excite the suspicion of the Court” then the burden of proof will rest on the person who asserts that the Will is valid.
• Forgery or fraud, which is also a serious criminal offence. This may involve presenting a Will which has a fake signature of the testator, or a document which bears the testator’s signature but has been tampered with to make it appear to be a valid Will.

If the terms of a Will seem unfair because they do not make reasonable financial provision for a spouse, civil partner, unmarried cohabiting partner, child or other dependant, then a claim can be made for a share of the deceased person’s estate under the Inheritance (Provision for Family & Dependants) Act 1975.

Any beneficiary of a Will can agree to vary their own share of an estate to provide for someone else, provided they do so by executing a Deed of Variation within 2 years of the death.

Otherwise, the Court can determine a claims under the Inheritance Act, by examining of a wide range of factors, including the financial circumstances of all parties, the size and nature of the deceased person’s estate, and any obligations owed by the person at the time of their death.

Claims under the Inheritance Act must be made to the Court within 6 months of the date of the Grant of Probate issuing, although the Court does have the discretion to allow late claims if there are good reasons.

There is no absolute way to stop someone contesting your Will following your death, but a testator can give their Will the best chance of being upheld by instructing a specialist private client solicitor to help with its preparation.

By keeping detailed records of the Will making process, and acting as witness to the Will, the solicitor can guard against any mistakes, and also be ready when the time comes to give evidence of the steps taken to ensure the Will was valid in all respects.

When a solicitor is taking Will instructions from an elderly or frail testator, or from a client who has been diagnosed with dementia or is suffering from a recent bereavement, then it is a good idea to arrange for a doctor to also attend the client to assess their mental capacity and/or to act as the second witness to the Will, which is known as the “Golden Rule”.

A testator wishing to reduce the risk of someone bringing a claim for a share (or greater share) of their estate under the Inheritance (Provision for Family & Dependant) Act 1975 should also consider what might be considered fair for any spouse, civil partner, unmarried cohabiting partner, child or other financial dependant to receive under their Will. 

Preparing a letter of wishes to accompany the Will is also a good idea, to explain the reasons behind the gifts, and also why someone may be due to inherit less than they were expecting, or nothing at all.  A letter of wishes also provides the Court with direct evidence of the deceased’s thought process, which will always be an important consideration when the Court is asked to vary a Will.

It is also possible to deter challenges by including an element of jeopardy within the Will, by using a “no-contest” or forfeiture clause.  A Will can state that any person who brings any kind of challenge loses their right to receive their inheritance under the Will.

Technically, an invalid Will can be challenged and overturned by the Court at any time, before or after a Grant of Probate has issued to the named Executors, and even following the completion of the estate administration.

However, the best advice is to investigate and bring any such challenge as soon as possible.  Ideally, a potential challenge will be identified before a Grant of Probate issues, and a simple stop can be put on any application for probate by entering a Caveat at the Probate Registry.  Caveats are inexpensive and easy to put in place, and do not require any reasons in the first instance.  A Caveat will last for 6 months, and can be renewed if further time is needed for investigations or negotiations for settlement of any dispute.

Although a Will can potentially be challenged many years after the estate has been administered and distributed, it may be difficult in practice to recover estate assets which may have been spent or converted, and the Court may refuse to order innocent beneficiaries of an invalid Will to return their inheritance.

A late challenge to a Will may also be hindered by a lack of evidence, as key documents such as solicitors files or medical records may no longer be available.  The witnesses to the disputed Will may also be difficult to trace, have faded memories of events, or even have died themselves.

Also, subject to some exceptions, a beneficiary entitled to receive an inheritance under a Will or the intestacy rules has 12 years from the date of the death to claim it.

As an executor or beneficiary of a deceased person’s Will, you may discover there is a challenge to validity of the Will, or that someone claims a share of the estate under the Inheritance (Provision for Family & Dependants) Act 1975.

If a Court ultimately rules a Will to be invalid, then the deceased’s estate will be administered under the terms of their earlier last valid Will, or under the rules of intestacy if there is no earlier valid Will.

For that reason it is for the beneficiaries of the disputed Will to consider what they stand to gain or lose if the last Will is overturned, and to decide whether or not to defend the claim.  Any party bringing or defending a claim puts themselves at risk of being ordered to pay their own and their opponent’s costs if they end up on the losing side.

The same goes for claims under the Inheritance Act, when it is usually the residuary beneficiaries of the Will who risk having their inheritance reduced or extinguished as a result of provision being made for the applicant.

An executor of a disputed Will is under no special duty to defend the claim, and will generally be advised to adopt a neutral stance.  In claims under the Inheritance Act, the executors will be required to provide evidence to the Court about the estate assets, and their costs of doing so will be paid out of the estate in any event.

If an executor is also a beneficiary, they can decide whether to defend the claim in their personal capacity, at their own personal cost and risk, in the same way as any other beneficiary.

Individually or collectively, the beneficiaries of a disputed Will may be willing to offer a share to a claimant in settlement of their claim, to avoid the stress, costs, risk and delay associated with litigation. 

Offers of settlement, especially in claims under the Inheritance Act, can be very useful tactical devices, as they can put pressure on a claimant and have the effect of raising the bar.  A claimant who turns down a good offer and fails to do better at Court will generally be ordered to pay the beneficiaries’ legal costs of the litigation.

A specialist contentious probate solicitor can help executors or beneficiaries to navigate these complex legal matters.

No, but the law and procedure are complicated and it may be difficult to navigate without the help of a specialist contentious probate lawyer. 

Litigation of any kind also brings with it the risk of being ordered to pay the costs of other parties in the process who are legally represented, under the “loser pays” principle.

Instructing a specialist contentious probate solicitor at an early stage will give you the best chance of identifying whether you have a viable claim, what sort of evidence may be required and how to get it, whether there are time limits, how to protect your position while you are investigating your claim, your options for trying to resolve matters out of Court, and how the Court process works if required.

A specialist contentious probate solicitor should also be honest and transparent about their costs of advising and representing you, and whether your case may be suitable for alternative funding arrangements such as a “no-win, no-fee” Conditional Fee Agreement.

Contact John Breeze, Head of Wills, Trust & Inheritance Disputes ([email protected]) for more information.