How to contest a Will

Tiffany Benson - Associate at Hewitsons
Tiffany Benson - Associate at Hewitsons

When considering a formal challenge to dispute a Will’s validity, you should act promptly. Although there is no time limit within which to bring a claim, the longer you leave it, the harder it may become to recover estate assets.

From the outset, it is important to obtain specialist legal advice, as contesting a Will can be a complicated legal challenge, requiring niche expertise.

Your solicitors’ first step will be to establish whether you have both ‘legal standing’ to bring a claim and sufficient evidence to support one of the grounds required to set the Will aside. The grounds are: (1) the Will was incorrectly signed and witnessed; (2) the signature on the Will is not the deceased’s handwriting; (3) the deceased lacked the requisite testamentary capacity at the time they gave instructions for the Will; (4) the deceased did not know or approve the Will’s contents; and (5) the deceased was subject to undue

influence.

Assuming you have legal standing and there is reasonable concern as to the validity of the Will, detailed investigations will be needed to obtain evidence in support of your claim. This may involve gathering further details of the circumstances surrounding the Will’s preparation and execution from those originally instructed by the deceased, or obtaining statements from the witnesses to the Will. It also may be necessary to request the deceased’s medical records.

If there is sufficient evidence to support your claim, your solicitor will put the Personal Representative of the estate on formal notice of your claim.

The aim of this early Pre-Action correspondence is to identify the disputed matters, narrow the issues and obtain further information relevant to the claim. The ACTAPS Pre-Action Protocol encourages the early settlement of such claims through Alternative Dispute Resolution, where appropriate.

Court proceedings are a last resort, as they are timely, costly and often difficult to predict the outcome of. Very few Will disputes result in court proceedings nowadays. Even fewer are determined only at trial.

Hewitsons’ Contentious Trusts & Probate team have a wealth of experience in such claims and a proven track record at trial. Our solicitors are members of the Association of Contentious Trust & Probate Specialists (ACTAPS), making them recognised experts in this field.