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Challenging a Will
In these unprecedented times, there are likely to be more people considering challenging a will. Judge & Priestley Associate solicitor Nasima Ansary considers the most common questions she has raised in this regard.
What are the grounds for challenging a will?
Valid reasons to challenge a will include:
- Lack of due execution –usually meaning that the will has not been signed and witnessed properly.
- Revocation – that the will has been revoked by marriage, another will, something in writing declaring an intention to revoke, burning, tearing or otherwise destroying the will with the intention of revoking it.
- Lack of testamentary capacity – the person making the will must have had mental capacity at the time of making a will. Mental capacity is often challenged where older people change their will and their mental capacity comes into question.
- Lack of knowledge and approval – the person making the will did not understand, or was not fully aware, of the content of the will.
- Undue influence – the person making the will was coerced into making a will that they did not want to make.
- Forgery and fraud – if the entire will or the signature of the person making the will is forged, or the content is fraudulent.
Who can challenge a will?
Although anyone can challenge the validity of a will, it is normally someone who is involved in the person’s life and who has been left out of the will, or not left sufficient financial provision.
What if I successfully challenge the will?
If your challenge is upheld, the court has an absolute discretion to decide how the estate should be distributed. The court can choose to void the will in part or in whole. Sometimes a provision from a previous will can be reinstated. Quite often the court will look at the previous valid will. If you are not included in that will then it is unlikely that you will receive anything.
How long do I have to challenge a will?
There is no time limit to challenge an invalid will. However, it is crucial to act as quickly as possible. If a challenge is raised early on, it is possible to prevent a Grant of Probate being issued and assets being distributed. Difficulties often ensue if assets are distributed and evidence is lost due to delay.
How long is the court process for challenging a will?
It is not uncommon for the court process to take between 12-18 months. Often the delay is not caused by the parties, but by the court timetable.
How much does it cost to challenge a will and who pays?
Challenging a will can be a time consuming and expensive process, given the amount of investigation required into medical records, solicitor’s files in respect of the drafting of the will, and witness evidence etc. The exact costs will therefore vary from case to case.
The general rule with litigation is that the losing party is ordered to pay the winning parties costs. It should, therefore, not be assumed that the costs will come out of the estate, as this is the exception rather than the rule.
Is the court process my only option if I want to challenge a will?
There are various alternative dispute resolution methods that can be explored to settle a disputed will. Mediation is particularly successful as it is typically shorter and cheaper than litigation, allows the parties to control the outcome rather than a court and can help the preservation of relationships as the longer litigation goes on, the more relationships can suffer.
We can provide advice on every aspect of challenging the validity of a will. We aim to resolve matters out of court wherever possible. However, where this is not possible, we have the expertise to conduct litigation in a cost efficient and professional way.
Advice and support when you need it most.
Disputes over a will can be complex and daunting. If you would like expert advice on this complicated area, please contact Nasima Ansary on 020 82590 7326 or email firstname.lastname@example.org to discuss your situation.