When a loved one passes away, discovering issues with their will can be a devastating development — especially if you only learn about these issues after probate has been granted.
A common misconception for many people is that it is too late to take action once the estate administration has begun, but this is not necessarily true. Understanding your rights to contest a will after probate is granted can help you to protect your interests and ensure your loved one’s true wishes are being honoured.
Can You Contest a Will After it Has Been Probated?
Yes, you can contest a will after probate has been granted. However, it becomes significantly more challenging — and potentially more costly — than challenging it beforehand. Once probate has been granted, the executor gains legal authority to begin distributing the estate, meaning some assets may have already been transferred to beneficiaries.
The key to successfully challenging a will after probate is granted lies in acting quickly and understanding the specific grounds and time limits that apply to the situation.
What Happens Once Probate Has Been Granted?
Probate is the legal process that validates a will, and formally gives the executor the authority to:
- Collect all of the estate’s assets.
- Pay any outstanding debts and taxes.
- Begin the process of distributing the remaining assets to beneficiaries.
Once probate has been granted, the will becomes a public document, readily viewable by way of making an application to the Probate Registry. This is often the stage in the process where family members first discover potential issues with the will, or learn that they have been unexpectedly excluded — potentially leading somebody to challenge it.
What Are the Grounds for Contesting a Will?
A will can be contested if there are valid legal grounds, such as the testator lacking mental capacity, failing to meet formal requirements, being subject to undue influence, not fully understanding or approving the will, or if the will involves fraud or forgery. Certain individuals may also challenge a will under the Inheritance Act 1975:
1. Lack of Testamentary Capacity
The person making the will (the testator) must have understood all of the following:
- The nature and effect of making or adjusting their will.
- The extent of their assets.
- The claims of potential beneficiaries
If they lacked this mental capacity for any reason, most commonly due to illnesses including dementia and Alzheimer’s or serious brain injury, then the will may be seen as invalid.
2. Requirements Not Met
Under the Wills Act 1837, a valid will must be:
- In writing.
- Signed by the testator.
- Witnessed by two independent adults present simultaneously.
Failure to meet these formal requirements can render the will invalid.
3. Undue Influence or Coercion
If the testator was believed to have been pressured, manipulated, or coerced into making changes that unfairly benefit certain individuals then there may be legitimate grounds for challenge.
However, proving undue influence will require strong supporting evidence, With the burden of proof being difficult to satisfy.
4. Lack of Knowledge and Approval
The testator must have fully understood and approved the contents of their will. This may be brought into question if:
- Someone else provided the will’s instructions to the writer.
- The testator had communication difficulties and was unable to easily express their wishes.
- The will is unusually complex for their circumstances.
5. Fraud or Forgery
If there is suspicion that the will contains forged signatures or fraudulent alterations, you may be able to apply to have it overturned. In order to do so on these grounds, expert handwriting analysis may be required.
6. Inheritance Act Claims
Under the Inheritance (Provision for Family and Dependants) Act 1975, certain individuals can claim the will fails to make “reasonable financial provision” for them, even if the will itself is technically valid.
Contesting Probate Time Limits: How Long Do You Have?
Time limits for contesting inheritance vary depending on your grounds for challenge:
Claims with no statutory time limit (though early action is strongly advised):
- Lack of testamentary capacity.
- Requirements for a valid will are not met.
- Undue influence or coercion.
- Lack of knowledge and approval.
- Fraud or forgery.
Claims with strict 6-month deadlines:
- Inheritance Act claims (reasonable financial provision)
- Clerical errors in will drafting
While we can see that some claims have no statutory time limit, courts are less sympathetic to late challenges, especially after estate assets have been distributed.
Your best chance of success is to bring a challenge prior to probate being granted, however, if this is not possible, you should act as soon as possible.which is particularly true for Inheritance Act claims. Waiting six to 12 months to contest can still be viable, but becomes increasingly difficult the longer you wait.
If you wish to make a claim after the six-month limitation period under the Inheritance (Provision for Family and Dependants) Act 1975, you must first apply to the Court for permission to bring the claim out of time. The Court may grant this permission in certain circumstances, with each application decided on its individual facts.
How Do You Contest a Will After Probate?
While the process of contesting a will after probate is granted can be complex, breaking it down into clear, practical steps can help you navigate it with confidence. Acting promptly and following the correct legal procedures will maximise your chances of protecting your inheritance and ensuring your loved one’s wishes are respected.
The process typically involves:
Step 1: Seek Specialist Legal Advice
Contact a solicitor experienced in contentious probate immediately. They will be able to assess whether you have viable grounds for a challenge and are capable of explaining the options available to you and outlining your chances of success.
Step 2: Notify the Executors
Inform the will’s executors about your potential claim and make a request that they refrain from distributing assets pending resolution of your challenge.
This step is crucial to protecting the contents from the estate as it becomes much harder to claim assets once they have been distributed.
Step 3: Gather Evidence
Collect all relevant documentation, including:
- Copy of the will and any previous wills.
- Medical records of the deceased.
- Correspondence related to the will’s creation.
- Witness statements from family and friends.
Step 4: Consider Alternative Dispute Resolution
Many inheritance disputes can be resolved without needing to go to court through negotiation or mediation . This could save significant time and money, so is always worth considering.
Step 5: Apply for Revocation of Probate
If necessary, your solicitor can apply to court for the grant of probate to be revoked. This brings asset distribution to a formal halt while the challenge’s grounds are investigated.
Contesting a Will After Estate Distributed
Can a will be overturned after probate and distribution? Yes, but it’s significantly more complicated. This is because, if you succeed in challenging a will after the estate is distributed:
- Beneficiaries may need to return the assets they received.
- Some assets may have already been sold or spent.
- Recovery can be particularly difficult, or even impossible.
- Additional legal costs will be likely.
This is what makes acting quickly essential — the longer you wait when challenging a will after probate is granted, the more difficult recovery becomes.
Who Has Rights to Contest a Will?
In theory, anyone could try to challenge a will. However, the law requires you to have “standing” — which means you must have a genuine legal interest in the outcome. In other words, you need to be directly affected by whether the will is upheld or overturned, i.e, you would inherit under the deceased’s previous will/intestacy rules. For example, to challenge a Will under the Inheritance (Provision for family and Dependants) Act 1975 you must be
- The spouse/civil partner, or have been cohabiting with the deceased as husband and wife for a period of 2 years immediately prior to death.
- A former spouse or civil partner of the deceased (as long as that person has not remarried/entered in to a subsequent marriage/ civil partnership).
- A child of the deceased, an adopted child of the deceased, or someone treated as a child of the deceased (this may include stepchildren).
- A Financial dependant of the deceased.
- Dependants.
Costs and Risks of Challenging a Grant of Probate
Contesting inheritance can be expensive and risky. Potential costs include:
- Legal fees.
- Court fees.
- Expert witness costs.
- The other side’s costs (should you lose).
In addition to the financial cost of challenging a grant of probate, there is also an emotional cost that must be considered. This includes:
- Strain on the familial relationship.
- Prolonged stress and lack of certainty over the end result will add to an already difficult period of time.
Advice on Contesting a Will: Key Considerations
Before challenging a will after probate is granted, consider:
- The Strength of Your Case: Do you have solid evidence supporting your challenge?
- Value at Stake: Are potential legal costs proportionate to what you might recover?
- Alternative Outcomes: What happens if the current will is invalidated?
- Family Impact: How will the challenge affect relationships?
- Time Sensitivity: How much of the estate has already been distributed?
For more information about contesting a will, view our blog on the subject.
Preventing Will Challenges: For Testators
In order to minimise the risk of your will being contested, there are a number of things you can do to help. You should always use qualified legal professionals and ensure proper witnessing procedures are followed. Additionally, keep detailed records of your instructions and wishes, regularly review and update your will, and obtain medical evidence of capacity if your health is declining but does not affect your mental capacity.
It can also be beneficial to remain open about your intentions with those who may expect to inherit, especially if you are making decisions that some may disagree with or find to be unexpected. While you are not legally obliged to explain your choices with regards to your last will and testament, doing so can reduce the chances of shock, resentment, or suspicion after your death.
In some cases, leaving a written statement alongside your will that explains your reasoning can provide some valuable context for your executors and the court, should your wishes be challenged.
For additional information on avoiding challenges to your will, view our blog dedicated to things you should NOT include in your will.
Act Fast: Protecting Your Rights When Contesting a Will After Probate
Challenging a will after probate is granted is absolutely possible, but remains complex. Success will depend on the grounds of your challenge, how quickly you act, and navigating the strict time limits that may apply.
While the process can prove costly and emotionally taxing, it may be necessary in order to protect your rightful inheritance, or ensure the wishes of your loved ones are respected.
The most important advice on contesting a will is to seek specialist legal guidance immediately if you have any concerns or questions. Every day you delay reduces your chances of success and increases the practical difficulties of successfully recovering your assets.
Remember: once probate has been granted, time is of the essence. Don’t allow uncertainty about the process to prevent you from protecting and fighting for your rights to contest a will when you have legitimate grounds to do so.
If you are considering contesting inheritance, or need specialist advice regarding challenging a will after probate, contact a specialist contentious probate solicitor immediately. The expert team at WHN Solicitors is here to help. Contact Katie Wright at 01200 408303 or email katie.wright@whnsolicitors.co.uk to find out more.
