Contesting a will can feel like the only choice if you believe you have been treated unfairly or if family disputes re-emerge after the death of a partner, friend or relative
Grounds for contesting a will
Normally, the deceased's estate should be distributed among the beneficiaries according to the terms of the will.
Believing that you should have got more or claiming you were promised a particular item is not generally sufficient grounds for contesting a will.
There are, however, a range of situations in which contesting a will may be warranted:
- The will is invalid for some reason.
- Another beneficiary is not entitled to receive anything.
- You were married to the deceased at the time of death or were financially dependent on the deceased, and the will has not made adequate financial provision for you.
- Assets or debts have been wrongly dealt with.
- The executors are acting improperly in administering and distributing the estate.
If you believe you have a case, take legal advice. You may be able to take immediate steps to prevent assets being wrongly passed to others. For example, entering a caveat at the Probate Registry can help delay the grant of probate (which allows the executors to take control of the estate). The most appropriate legal action will depend on your particular circumstances.
When contesting a will, the best approach is often to discuss your concerns with the executors and/or beneficiaries. You may be able to negotiate an agreed solution. For example, the beneficiaries might agree to change the terms of the will in your favour using a deed of variation.
If you cannot reach an agreement, contesting the will in court remains an option, but take legal advice on the strength of your case and likely costs involved.
Contesting a will that may be invalid
A will is not valid unless it is signed by the person making the will (the 'testator'), with the signature properly witnessed by at least two people.
In addition, a will is not valid if the testator was either acting under undue influence or lacked 'testamentary capacity' when they made the will. Broadly speaking, this means they did not understand what they were doing. For example, it might be possible to dispute a will made by someone who was suffering from dementia.
A valid will can subsequently become invalid if the testator:
- Makes a subsequent will.
- Gets married or enters into a registered civil partnership (unless the will was clearly made with that marriage in mind).
- Deliberately destroys the will with the intention that it should no longer apply.
Similar considerations apply to any 'codicils' (ie documents setting out changes to one or more of the terms of the original will).
If a will can be shown to be invalid, the situation is treated as if the deceased died intestate, without having made a will. The estate will be distributed according to the rules of intestacy – normally passing to the spouse or shared between any surviving spouse and children or if there are none shared between the other closest relatives.
If a codicil is invalid, the original will remains in effect without the changes made by the invalid codicil.
Normally the beneficiaries named in a will are entitled to the bequests made to them. There are a few special cases:
- If a beneficiary is one of the witnesses to the will or the spouse or civil partner of a witness, that beneficiary receives nothing. The rest of the will remains valid.
- The deceased's spouse (or registered civil partner) normally ceases to be a beneficiary if they subsequently divorce – unless the will states otherwise. However, the former spouse may still be able to claim dependency (see below). If the couple separated without a divorce (or judicial separation), the spouse remains a beneficiary.
- If a beneficiary dies before the deceased, any bequest to that beneficiary normally ceases to apply – unless the will states otherwise (eg passing that share to the deceased beneficiary's children) – apart from bequests to a child of the deceased, which normally pass to that child's own children (or remoter descendants) if there are any.
- If the will states that a beneficiary should receive a particular asset which is no longer part of the estate (eg if it was sold before the person died), the beneficiary is not normally entitled to any substitute.
Dependency and contesting a will
You may be able to contest a will if you were married to the deceased at the time of death, were financially dependent on the deceased person or are in financial need. Challenges can be made by:
- The person's spouse.
- Anyone who lived with the person, as husband and wife, for at least two years.
- A former spouse who has not remarried (and who did not have a 'clean break' financial settlement as part of the divorce).
- A child or anyone else who was treated as a child of the family.
- Anyone else who was being financially maintained by the person.
You might contest the will if you were either left out of it altogether or believe you were not given a fair share of the estate. How much is fair depends on the circumstances, taking into account factors such as your financial need and resources, whether you have a disability, how much is available and what other claims there are on the estate.
Disputing how the estate is administered
You may want to challenge the way the estate is being administered and distributed, for example, if you believe the executors are not giving you what you are entitled to under the terms of the will.
In some cases, there may be good reasons for what is being done. For example:
- It may take the executors months (or even years) to sort out all the assets and debts and to get probate so that they can distribute everything.
- Debts, including funeral expenses and any inheritance tax, take priority and may have to be paid off before the beneficiaries receive anything.
- There may be good reason for the executors to delay selling assets (eg if their value is expected to rise substantially) before distributing money to the beneficiaries. The will may give the executors the explicit right to manage the estate as they see fit.
- Some assets fall outside the estate anyway and are not covered by the will, for example, certain kinds of jointly owned property, occupational pension schemes and life insurance policies written in trust.
If the executors appear to be acting improperly, take legal advice.
NB: This guidance applies to England and Wales only. Different rules and procedures apply in Scotland and Northern Ireland.