How to contest a will

There will be times when contesting a will is the right thing to do. But how do you go about challenging the contents of a will?

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Contesting a will doesn’t make you a ‘gold digger’, as there can be valid reasons for doing so. However it’s not a decision to be taken lightly as it can be a costly and emotionally draining. 

When you make your will, the idea is generally to ensure that your loved ones benefit from your assets after you’ve passed away. However, according to the most recent Ministry of Justice (opens in new tab) figures, there’s been a 50% rise in the number of contested probate cases between 2020 and 2021.   

Probate is the process of proving a will is valid. According to Gary Rycroft, partner with Joseph A. Jones & Co (opens in new tab), the number of people deciding to contest a will is likely to keep increasing.

“People have more assets to fall out about now – more of us own property and people tend to challenge wills as people have stuff that’s worth fighting for. The decline of the traditional nuclear family and generally litigious society means we’re more inclined to see challenging a will as our legal right.”

When can you contest a will? 

There are two sets of circumstances which allow you to contest a will, explains Gary Rycroft.

The first is if you don’t believe it is a valid will that has been made properly. This might be because it wasn’t witnessed correctly. “Or you could contest it on the grounds of lack of capacity, so if someone has dementia and didn’t understand what they were doing when making their will,” says Rycroft.

The second situation where you may have grounds for contesting a will is if you’re unhappy about the way the estate is being passed around the beneficiaries, and feel you should enjoy ‘reasonable financial provision’.

The Inheritance Act 1975 outlines certain people who are entitled to make a claim in this way, such as a spouse or unmarried partner.

If you pursue this route, then you may need to prove the deceased was providing for you financially while they were alive, but you are now facing financial hardship since their death.

What happens if a will is contested? 

Contesting a will isn’t as simple as just going to see a solicitor and taking the case to court, in order to get the will overturned.  

Even if you have grounds to contest a will and a court decides that the will is invalid, there’s still no guarantee you’ll get anything as a result of your efforts. 

If a will is deemed invalid, the deceased’s estate can be distributed at the court’s discretion. This is usually done in line with the most recent valid version of the will - so if you’re not named in this earlier version either, you still won’t get anything.

How do you start to contest a will? 

Before you start calling solicitors, it’s worth thinking long and hard about what you hope to gain by contesting a will. It’s not just the financial and emotional cost; contesting a will could lead to rifts within your family.

It’s also important to understand that the rules on contesting a will vary across the UK. The Inheritance Act 1975 doesn’t apply in Scotland, for example, though there are separate rules ensuring that children and spouses are entitled to something from a will. As a result, it’s well worth checking exactly how the process works with the Law Society of Scotland (opens in new tab) if you live north of the border.

If you decide you want to go ahead, you will need to speak to a solicitor about your grounds for contesting the will, while they can talk you through the process and costs involved.  

“If your claim is unsuccessful, you may be liable to pay some or all of the costs of the other parties, as well as your own”, warns Josh Petters, solicitor with Moore Barlow (opens in new tab). “It is best to instruct a law firm with experience and a strong reputation for dealing with will, trust and estate disputes.”

There are also potential time pressures to be aware of. If you are making a claim for ‘reasonable financial provision’, then this should take place within six months of probate being issued.

While there is no definitive time limit in place should you be challenging the validity of a will, it is nonetheless best to do this as soon as possible. That’s because it can be harder to make a claim once the executors of the will have started sorting out the finances and selling off property and assets.

Do you need a solicitor to contest a will? 

Making your own will is fraught with danger given the various rules in place, but contesting a will on your own can be even more complex.

Gary Rycroft warns against DIY challenges saying: “It’s emotionally draining and would be madness to do it yourself – it’s a complex legal situation that will require a lot of expert advice and expense, and not something you can do with a quick fixed fee session.”

Contesting a will can be a lengthy process too. As wills are legal documents, there are certain rules and procedures to adhere to when it comes to challenging them. For a challenge, you are likely looking at a minimum time frame of a year, and possibly far longer.

Sue Hayward

Sue Hayward is a personal finance and consumer journalist, broadcaster and author who regularly chats on TV and Radio on ways to get more power for your pound.  Sue’s written for a wide range of publications including the Guardian, i Paper, Good Housekeeping, Lovemoney and My Weekly. Cats, cheese and travel are Sue’s passions away from her desk!