How to Challenge a Will in England: A Comprehensive Guide
As the saying goes, death and taxes are the only certainties in life. Unfortunately, when someone passes away, the distribution of their assets can sometimes lead to conflict among surviving family members. This is particularly true when a Will is involved.
In England, a Will is a legal document that outlines the wishes of the deceased person (also known as the testator) regarding the distribution of their assets after their death. The Will must be written in a specific way and signed by the testator and two witnesses to be considered valid. However, there are instances when the validity of a Will can be challenged. In this article, we will discuss how to challenge a Will in England.
Grounds for Challenging a Will
There are several grounds on which a Will can be challenged. These include:
Lack of Testamentary Capacity
Testamentary capacity refers to the mental ability of the testator to understand the nature and effect of making a Will. If a person lacks testamentary capacity at the time of making their Will, it may be challenged.
Undue influence occurs when the testator is coerced or forced into making a Will that does not reflect their true wishes. This can be particularly difficult to prove, as it requires evidence that the testator was subjected to pressure or manipulation.
Lack of Valid Execution
For a Will to be valid, it must be signed by the testator and two witnesses. If the Will was not executed properly, it may be challenged.
Fraud or Forgery
If the Will is found to be fraudulent or forged, it can be challenged. This includes situations where the testator’s signature was forged or where someone else signed the Will on their behalf.
Rectification and Construction Claims
Rectification claims involve errors or mistakes in the Will that need to be corrected. Construction claims involve interpreting the meaning of a particular provision in the Will.
Who Can Challenge a Will?
Not everyone has the legal standing to challenge a Will. In England, only certain people are allowed to make a claim. These include:
- A spouse or civil partner of the deceased
- A former spouse or civil partner who has not remarried or entered into a new civil partnership
- Children or grandchildren of the deceased
- Anyone who was financially dependent on the deceased
- Anyone who was promised something by the deceased (even if it was not included in the Will)
How to Challenge a Will
If you believe that you have grounds to challenge a Will, there are several steps you should take.
Step 1: Seek Legal Advice
Challenging a Will can be a complex and time-consuming process. It is important to seek legal advice from a solicitor who specialises in contentious probate. They can advise you on the strength of your case and guide you through the process.
Step 2: Gather Evidence
To challenge a Will, you will need to provide evidence to support your claim. This may include medical records, witness statements, and any other relevant documentation.
Step 3: Issue a Caveat
A caveat is a legal notice that prevents the Grant of Probate from being issued until the caveat is removed or the matter is resolved. If you believe that there are grounds to challenge a Will, you can issue a caveat to prevent the executor from obtaining probate until the matter is resolved.
Step 4: Make a Claim
To make a claim, you will need to submit a formal document called a ‘claim form’ to the court. This must include details of the deceased, the nature of your claim, and the grounds on which you are challenging the Will.
Step 5: Attend Mediation
Before the matter proceeds to court
List of court of appeal cases relating to challenging a will in England
Court of appeal cases relating to challenging a will in England:
- Ilott v The Blue Cross & Ors  EWCA Civ 275: This case involved a woman challenging her mother’s Will after being left out of it. The court ultimately upheld the original decision to exclude the daughter from the Will.
- Barrett v Bem and Others  EWCA Civ 52: In this case, the deceased’s daughter challenged the Will on the grounds of lack of testamentary capacity and undue influence. The court ruled in favour of the daughter and overturned the Will.
- Sargeant v Sargeant and Another  EWCA Civ 12: This case involved a challenge to a will on the grounds of undue influence. The court ruled in favour of the claimant and invalidated the Will.
- Gill v RSPCA  EWCA Civ 1474: In this case, the claimant challenged a will that left the bulk of the estate to the RSPCA. The court ultimately ruled in favour of the charity and upheld the original Will.
- King v Dubrey and Others  EWCA Civ 108: In this case, the claimant challenged a will that left a significant portion of the estate to the deceased’s long-term partner. The court ultimately ruled in favour of the partner and upheld the original Will.
These cases demonstrate the various grounds on which a will can be challenged in England, including lack of testamentary capacity, undue influence, and exclusion of family members. It is important to seek legal advice if you are considering challenging a will, as the process can be complex and requires careful consideration of the evidence.
FAQ relating to challenging a Will in England:
Can anyone challenge a will?
Not just anyone can challenge a will. Only people who have a valid legal claim, such as family members or dependents of the deceased, can contest a will. The grounds for challenging a will include lack of testamentary capacity, undue influence, and fraud or forgery.
How long do I have to challenge a will?
In England, you generally have six months from the grant of probate to contest a will. However, there are some circumstances where this time limit may be extended. It is important to seek legal advice as soon as possible if you are considering challenging a will.
What happens if a will is successfully challenged?
If a will is successfully challenged, it will be declared invalid, and the deceased’s estate will be distributed according to the rules of intestacy. This means that the estate will be divided among the deceased’s surviving spouse or civil partner, children, and other relatives in a specific order of priority.
Can I challenge a will if I am not named in it?
Yes, you may be able to challenge a will even if you are not named in it. For example, if you are a family member or dependent of the deceased and were left out of the Will, you may have grounds to contest it.
How do I go about challenging a will?
Challenging a will can be a complex legal process, so it is important to seek advice from a solicitor who specialises in probate disputes. Your solicitor will advise you on the evidence you need to gather and the legal grounds on which you can challenge the Will. They will also help you to navigate the court process and negotiate a settlement if possible.
These are just a few of the most common questions about challenging a will in England. If you are considering contesting a will, it is important to seek legal advice as soon as possible to ensure that you have the best possible chance of succes