What you need to know about contesting a Will.

Simply put, no.

This is because a person’s Will only takes effect once they have died. Prior to this, so long as they have the capacity to do so, in most cases a person can change their Will as many times as they like and for whatever reason they see fit.

However, there may be circumstances where it is appropriate to look at making a Will on behalf of someone who has lost capacity. In those scenarios, an application could be made to the Court of Protection for a “Statutory Will”. Whilst this does not involve challenging the validity of an existing Will, these applications can still become contentious and the Court will only approve the making of a new Will where it is deemed to be in that person’s best interests.

These cases are complex and advice will be required to consider whether it is appropriate for your circumstances.

Yes, you can, but it does become more challenging.

Once probate has been granted, the executors can begin collecting in and distributing the assets of the estate. Once assets have been distributed, recovering them, even if you have a court judgment, becomes significantly more difficult.

If you suspect you may have a claim, it is therefore important that you seek legal advice as soon as reasonably possible.

‘No contest’ clauses are added to Wills to discourage beneficiaries from challenging a Will and delaying the distribution of the estate.

Essentially, if you choose to contest a Will which has a “no contest” clause, then you risk losing any inheritance you were initially granted. However, that does not automatically mean a claim should not be pursued – it may be that the potential value of your claim is significantly more than the inheritance you have been left.

It is therefore crucial to discuss this with an expert early on, to assess the strength of your claim and whether it is worth the risk of losing the inheritance provided in the Will.

If a claim to challenge the validity of a Will is successful, the estate will be distributed in accordance with the previous valid Will, or if there is no previous valid Will, the default rules of intestacy.

You will only be able to challenge the validity of the Will if you benefit under a previous Will or the intestacy rules. It’s therefore important to take advice early on to check whether or not you are eligible to bring a claim.

Those most likely to be defending the claim are the beneficiaries under the final Will – in particular those who would receive less inheritance in the event of a successful claim.

The executors or personal representatives of an estate will also be involved, but they will need to remain neutral. Their involvement will be limited to providing information on the estate and, where relevant, complying with any agreement reached between the parties or court order made regarding an adjusted distribution of the estate.

If you’re worried that someone is keeping information about a Will from you, or not letting you see it, we can take action for you. If you’ve already searched for the Will at the Probate Registry then we can apply to the court to make the person concerned produce a copy – or come to court to provide further information.

The starting point is that each party will pay their own costs.

If the matter goes to a final court trial, the general rule is that the loser pays the winner’s costs. It is unusual for everyone’s costs to be paid from the estate.

We recognise that funding the costs of a legal claim is a concern for all clients. We will therefore spend time at the outset of a case considering the funding options available and what would best suit your circumstances.

Your funding options may include:

• funding the costs yourself;
• funding the costs through your legal expenses insurer;
• funding through a “no win no fee” agreement.

However, not all of these options may be right for your case. Whatever your situation, we’ll make sure to keep you fully informed every step of the way. Where appropriate, we try to settle just about every case before it comes to trial, which helps reduce costs and enables you to have more control over the outcome.

Once you have made initial contact, we will invite you to have a no obligation discussion with one of our team of lawyers, so we can understand your case and your circumstances better, including a review of the type of case that may be most appropriate for you to pursue.

If a case to challenge a Will proceeds, we are likely to begin with an investigation into the Will making process – which may include requesting information from any solicitors or Will writers involved. We are also likely to advise you to enter a caveat at the Probate Registry, to stop an application from Probate advancing, whilst we are investigating your claim.

Other steps including seeking medical records and contacting witnesses may follow from there, before we spend further time with you considering the evidence and assessing the merits of your claim.

The time limits that may affect your claim will depend on the type of claim you are looking to bring. Some claims have strict time limits, which may be as short as six months after a grant is obtained from the Probate Registry. However, even if your claim is not subject to a strict time limit, you will want to make sure that the property you are claiming against remains safe and secure. For this reason, whatever the nature of your claim, we recommend getting in touch with us as soon as possible to protect your position.

Some can last just a few weeks, but others may, unfortunately, take many months to resolve. Whatever your circumstances, we take an active approach and look for practical solutions to help you achieve a resolution. We’ll treat every case as sensitively and efficiently as possible, always focusing on your best interests. Where appropriate, we’ll aim to resolve your case well before trial, so we can hopefully save you time, stress and money.

We focus on practical solutions and, where possible, negotiations, to try to reduce the need for our clients to go through an expensive and stressful court process. However, if court action is required, we have the necessary expertise to guide you through the process.