Contested wills and estate disputes in general are becoming increasingly common. In England and Wales a person can distribute their estate however they wish in their will. It is also true however that some provisions made in a will can be disputed after death in a process most often called, challenging or contesting a will. If you believe you may have cause to challenge the provisions of a will we may be able to help you.
Reasons for Challenging a Will
There are two common reasons for challenging a will:
- A challenge on the grounds that the will was for some reason invalid. For example it might be argued that the person who made the will (the testator) wasn’t of a sound mind when they made the will.
- A challenge made on the grounds that the person claiming has not been adequately provided for in the will. A common example being a partner from a previous marriage.
Examples of Grounds for Contesting a Will
- Negligent drafting of the will
- Lack of mental capacity at time of signing of the will
- Improper conduct by the Executor and/or Trustees of the will
- Negligent drafting of the will by the will writer
Who can Contest a Will?
To contest a will you need to be a current or previous spouse or civil partner, a child (or treated as such e.g. adopted) of the deceased, a recent dependent or person receiving maintenance from the deceased or a person who lived in the same household for the two years before the death.
When can a Will be Contested?
In England & Wales contesting a will should normally be done within six months of probate but in certain circumstances can be contested over a longer time period. Our general advice would be to take action as soon as is possible.
The above is a general guide to some of the processes and common issues in regard to contesting a will (contentious probate) but we would strongly advise that you consult properly with a solicitor qualified and experienced in this area at an early stage. This particular area of law is complicated and you should consider carefully before choosing the right person to represent you. There are also a number of different funding options on offer to people wishing to contest a will but again you should consider and think these through carefully before choosing the one that suits you best.
Angela Robbins has been in practice since 1982 and provides a full Family Law service to her clients, Angela is a specialist in the field of contentious probate. Duncan McNair is a highly experienced commercial litigator with in-depth experience in contested probate.
Peter Dempsey qualified as a Barrister in the Republic of Ireland in 1988, and as a Solicitor in England & Wales in 2005. He has focused his professional work on asset protection, tax planning and estate/generational planning for high net worth individuals. Most of his clients are internationally mobile and active, with assets in a number of jurisdictions.
Guillaume Barlet is a London-based French lawyer (Independent Juriste) who advises and assists on wills, estate planning and probates, taking into consideration both legal and tax aspects on such matters within multiple jurisdictions, including France.