Challenging a Will can be difficult, both emotionally and legally. Katie Lofthouse outlines the main issues and explains crucial questions of timing.

There are various grounds for contesting a Will, including lack of mental capacity, the Will was not validly executed, it was made without the Will-maker’s knowledge and approval, and it was made with undue influence.

Different time restrictions apply to different types of disputes, which means it’s important to understand how long you have to make a claim. Legal advisers agree that it’s generally easier to dispute a Will before probate has been granted and the estate distributed.

Lack of mental capacity

Mental capacity rules mean a will can be contested if the person making it:

  • does not understand the nature and effect of the Will
  • is unaware of the extent of the property or estate
  • does not know exactly who is included and excluded
  • is affected by a mental condition – such as dementia – that leads them to make decisions they would not otherwise have made.

Undue influence, coercion and duress

A Will can also be challenged if you can prove the individual was was unduly influenced, coerced or under duress at the time they made the Will. The quality of evidence required to establish undue influence is extremely high. In effect it means you have to demonstrate there is no other reasonable explanation for the nature and content of the Will.

Absence of valid execution

A claim for lack of valid execution means a Will can be disputed if it doesn’t comply with one or more these conditions:

  • The Will is in writing and signed by the person making it, or someone authorised to do so
  • It must be evident that the Will-maker intended to put it into effect by signing it
  • The signature must be made, or acknowledged, with at least two witnesses, present at the same time
  • Each witness must either attest and sign the Will, or acknowledge the signature in the presence of the person making it.

Lack of knowledge and approval

The Will-maker must know and approve of its contents in full. You can dispute a Will on this ground, even if it seems to have been executed validly and issues of mental capacity aren’t present.

To do this successfully, you must show that the he Will-maker was not fully aware of the content, or it was created in suspicious circumstances. An example of this would be a valuable gift, such as an antique, to a person involved in drafting the Will.

When time limits don’t apply, but time is still important

There is no time limit on bringing a claim for:

  • lack of capacity, undue influence or coercion
  • improper execution
  • allegation of fraud

Nonetheless, any delay in bringing a claim will reduce your chances of success. For example, the passage of a significant period of time makes it harder to acquire evidence, while key witnesses may have died, or their memory may not be as clear as it once was.

In claims alleging lack of capacity, a caveat – or legal notice – can be lodged before a grant of probate in order to suspend the process and enable initial investigations.

A six-year time limit applies to claims for breach of trust, such as failing to distribute assets in line with the Will, or underselling assets.

Another time limit worth keeping in mind is that beneficiaries who believe they haven’t received their entitlement can make a claim up to 12 years from the death of the person who made the Will.

What you can do if you haven’t been fairly provided for

Loved ones and relatives of the deceased can make a claim against an estate even if the Will is valid. The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to ask the court for a payment from the estate if they do not believe they have been reasonably provided for in the Will.

These individuals include:

  • spouses or civil partners
  • cohabitees
  • children, including adopted children
  • people who the deceased treated as children
  • people financially dependent on the deceased

Time is critical under the Inheritance Act

Claims under the Inheritance Act usually need to be brought within six months of probate being granted (or the granting of letters of administration if the person died without a Will). Claims made after this period can be allowed, but only in extremely rare circumstances.

The court will consider the reason for the delay, to what extent the estate has already been distributed, whether negotiations had commenced at the date of limitation, and the overall merits of the claim.

Meanwhile, a time limit of six months from the granting of probate applies to applications to correct a clerical error, or if there has been a failure to properly understand the deceased’s wishes.

The clock is ticking for professional negligence claims

If you want to make a claim against a professional adviser who drafted the Will, you are allowed six years from the date the alleged negligence happened – in other words, when the Will was drafted, or three years from the date you discovered the negligence, whichever is later.

If you want to ask the court to put right a negligently drafted Will, you are normally allowed six months from the granting of probate.

For further advice on contesting a Will, or any other litigation matter, call Katie Lofthouse on 01200 408300 or email her at katie.lofthouse@whnsolicitors.co.uk