How to challenge a Will

The court of appeal awarded Heather Ilott £164,000 of the £500,000 estate, against Melita Jackson’s desire to leave all her assets to animal charities. Jackson died at age 70 in 2004, and allegedly cut her daughter out of her Will for eloping with a boyfriend at age 17.

While Wills are not regularly overturned in court, the case is a reminder that this is possible if they are considered particularly unreasonable. There are plenty of cases in recent years that highlight that this is becoming increasingly common.

So if partners, spouses or children feel they have been cut out unfairly, it is possible to contest the Will – although bear in mind the process can be difficult, costly and time-consuming.

What happens if you die without leaving a Will?

Reasons you can challenge a Will

UK law allows people to leave their assets to whomever they wish. However, there are some restrictions that people must abide by.

You must provide for your dependents

Under the Inheritance Act of 1975, a Will can be contested if it fails to make ‘reasonable’ provision or spouses and children. Yet each claim must be proven on facts that show a financial obligation is involved. Heather Ilott was poverty-stricken, so the court felt it fair she should inherit a portion of her mother’s estate.

This act also covers cohabiting partners, provided they have lived with the deceased for at least two years. Remember, it will be the court’s decision to consider the individual case, and judge what is reasonable.

Even if a claim is successful, it does not mean the Will is totally disregarded. It’s likely – as the case above highlights – that any other beneficiaries detailed will get a chunk of the estate too.

The Will is invalid

Mistakes in writing a Will are becoming more common, particularly given the rise of DIY Wills. These are typically available online and in supermarkets for a fraction of the cost of going through a solicitor – but if any Will isn’t drawn up correctly it could be challenged.

A Will that is properly executed should be signed by a testator (the person making the Will), and two witnesses – if it isn’t, it will be invalid and overturned after death.

Even if a Will is drafted correctly, it could be challenged if a person isn’t able to grasp the value of the estate they are disposing of – they must be of sane mind. The law states they must be of ‘sound mind, memory and understanding’ when making a Will. If the person is suffering from Alzheimer’s or dementia, for example, at the time they make a Will this could be a fair reason for challenging it.

The testator wasn’t of rational mind

Of course, people often make perfectly rational decisions to disinherit family. However, in cases where nothing is left to a close family member there may be questions raised about whether this was a rational decision at the time. Did the testator fully understand the contents of the Will and implications in order to approve it in the first place? 

Alternatively, if a large portion of assets are made to a particular beneficiary, the Will could be also be challenged if it’s thought this charity, for example, or person influenced this decision. However, a successful claim of undue influence must show that the testator was coerced into making the Will.  

Read our guide to writing a Will...

How to go about challenging a Will

If you want to challenge a Will, you should ideally do so as soon as possible, before probate is granted. 

Seek specialist legal advice, and then file what’s known as a ‘caveat’ at the Probate Registry to stop probate being taken out in the meantime.

In response, beneficiaries may issue a ‘warning’ document to object to any claim. That is when decisions are made on whether to proceed further. It means any person challenging the Will must formally state their interest in the estate of the deceased, a process known as an ‘appearance’.

The costs and time involved

Remember that if legal action is taken it can be expensive and the process drawn out. Depending on which court the case ends up in, costs can spiral. These vary dramatically, but can amount to thousands or even £250,000 or beyond if the case drags on and it’s complicated.

The process can also be long-winded, with some cases taking years to be ready for a hearing. However, mediators are typically involved these days to try and find a compromise between the parties involved.

If, finally, it’s decided the Will in invalid then any previous version of the Will is likely to be submitted for probate. If there isn’t a previous version, then the rules of intestacy apply. This makes it wise to check whether there is any benefit to disputing a Will before pursuing a claim.

Intestacy rules apply if a person hasn’t left a valid Will, to clarify who Will inherit the estate. These rules pass your estate to your relatives, beginning with a spouse or civil partner. After they are taken into consideration, the estate passes to any children left behind.

Find out more about intestacy...

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