How to contest a will

If you are unhappy with what you have or have not received from an inheritance, or suspect foul play, then you have the option to contest the Will

20th April 2018

How to contest a Will

You will need to identify the executors, or personal representatives, and the solicitors dealing with the deceased’s estate. You will need to visit the Probate Registry and find out the full name, date of birth and death and last permanent address of the deceased from the death certificate. You can order a copy of the death certificate from the General Register Office for a fee of around £9.25. If a Grant of Representation has been taken out, the Probate Ministry will supply you with a copy.

If you are suspicious of a Will, then you should consult a solicitor immediately. They can investigate the circumstances around the preparation of the Will, and enter a caveat at the Probate Registry to prevent a Grant of Probate being taken out. It is vital to act as quickly as possible to stop the estate being administered and having its assets distributed in accordance with the Will.

it is vital to act as quickly as possible to stop the estate being administered and having its assets distributed in accordance with the Will

What is a Caveat?

A caveat is a method of temporarily stopping probate from being carried out. If you enter a caveat, the executor of the estate will not be able to get the Grant of Probate before the caveat runs out. Caveats are often used to create time to work out whether there are grounds to oppose an application for Probate or bring estate matters before the Court.

Examples of this can be when there is a dispute between two or more people being equally entitled to apply for probate or an allegation concerning the Will itself.

You can enter a caveat by writing to, or visiting, any registry with your signed request and address, and the full name, date of death and address of the deceased. A fee of around £15 is charged but you do not require a copy of the deceased’s death certificate. If you have decided that you wish to enter a caveat, then you should do so as quickly as possible.

An address in England or Wales is required. Two people cannot enter the same caveat. A caveat lasts six months, with the option of extending it for another six months if needed. Extending the caveat costs around £15 and must be done in the month before it is due to end.

Once a caveat is issued it is the responsibility of the executor and the person applying for probate to sort out their differences. A ‘warning’ may be issued against you by the person applying for the probate, which requires you to formally state your interest in the estate of the deceased, known as an ‘appearance’.

Once this has been entered, the caveat can then only be removed by a registrar. The registrar will do this when the matter has been resolved, which happens when a summons is issued by you or the person applying for probate by the District Probate Registrar, or a probate action in the estate is issued which will result in court proceedings.

The caveat can be withdrawn by the issuer by writing to the registry and returning the acknowledgement letter, but only if the aforementioned ‘appearance’ has not been registered. If there is no agreement, it is recommended that legal advice is sought. This can be expensive with the possibility of losing and being liable to pay the other party’s costs, as well as your own.

Time and cost

The cost of pursuing a probate court action can vary from a few thousand to hundreds of thousands of pounds for bigger, more complex claims. If it is decided that a Will is invalid, then any previous Will of the deceased will be submitted to probate instead. If there is no previous Will, then the rules of Intestacy will apply to the estate, so it is therefore prudent to discover whether you would benefit from any previous Will or intestacy before pursuing a court action.

If you launch legal action that you subsequently lose, it is likely that the Court will order you to pay the other party’s costs, in addition to your own costs. Probate litigation is expensive, causes the delay of administration and could lead to the deceased’s final wishes being ignored.

Funding options to contest a Will

  • Private funding;
  • Conditional funding. These are often advertised as no-win no-fee arrangements; but it is important to remember that if you win, your lawyer will want to recover their costs (and possibly a success fee) from either the estate or the other side; and
  • Legal Expenses Insurance (LEI).

Mediation

Mediation is a method of minimising the costs of contesting Wills claims, disputes involving the administration of the estate and settling inheritances. During mediation, the parties attempt to reach a settlement before going to court.

Mediation is less formal than going to court, and provides the parties with the opportunity to express their views. As such, a solution may be achieved to the satisfaction of both parties, rather than leaving one party with everything and the other with nothing. When contesting a Will, this is relevant as a Court can only decide whether a Will is valid or is not.

Mediation is usually less expensive than going to court and the aim is to help the parties reach an agreement, rather than battling matters out in court.

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