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Wills & Probate

Contesting a will

Nicola Waldman
Nicola Waldman
Partner
Ian Lane
Ian Lane
Consultant
Philippa Barton
Philippa Barton
Partner
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Josephine Russen
Associate

If you have concerns about the validity or terms of a will, you may decide to contest it. Our specialist Wills & Probate solicitors will support and guide you through every step of the process.

There are many different reasons for contesting a will, these include:

  • Incorrectly drafted wills
  • Wills not being signed and witnessed in accordance with the law
  • Coercion (undue influence) of the deceased when they signed the will
  • The deceased lacked mental capacity when they made the will
  • Forgery & fraud

How do I contest a will?

Where there is a will the first steps may be to make what is known as a Larke v Nugus request to the solicitors who drafted it. These are standard questions which can be asked about the circumstances surrounding when the deceased gave instructions for their will to be drafted and then the execution of the will itself.

 

If you have concerns and don’t want probate to be granted on what could be an invalid will, then you could enter a ‘caveat’ which prevents someone taking out a grant of probate. There are legal consequences, so it’s advisable to seek expert legal advice first. Our team are available for a confidential discussion. 

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Lack of valid execution of a will

A will is normally only valid if it is:

  • In writing
  • Signed by the deceased (or someone on their behalf, on their instruction)
  • Witnessed by two independent adults, who are both present at the signing, and who also sign the will

"Nicola is efficient, knowledgeable, personable and provided the exact amount of quality advice and execution we needed."

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Undue influence

There must have been ‘coercion’ rather than just ‘persuasion’ to successfully challenge a will on the grounds of undue influence. The form of the undue influence can take many forms perhaps an instant act of pressure, intimidation, domination, control, or emotional pressure.

There is a 5 part evidential test:

  • 1. The coercer was in a position to exercise influence
  • 2. The coercer did exercise influence over the deceased
  • 3. The influence exercised was ‘undue’
  • 4. The undue influence was exercised in relation to the will
  • 5. The undue influence exercised for the will to be executed

In short, undue influence must be the only reasonable explanation for the contents of the will, rather than just one possible explanation.

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Lack of testamentary capacity

One of the grounds in which a will can be challenged is lack of capacity. A judge will consider a number of factors including medical evidence and the evidence of the solicitor who drafted the will. 

The test for capacity involves four questions: 

  • 1. Did the deceased understand that they were making a will, and the effects of it?
  • 2. Did the deceased understand the extent of their estate?
  • 3. Did the deceased understand as to those who would have claims on the estate?
  • 4. Was the deceased impaired by any disorder of the mind, or delusions?

A judge will consider a number of factors including medical evidence and the evidence of the solicitor who drafted any will.

For specialist legal advice, contact our Wills & Probate specialists on
or request a call back.
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Forgery & fraud

Forgery and fraud are grounds to contest a will. The forgery of a will may include its creation and/or the imitation of someone’s signature with intent to deceive. Usually you will need a hand writing expert to verify the signature of the deceased on any will.

Forgery will often result in a claim of fraud and have criminal implications too. Given the seriousness of the allegations, it’s often quite a difficult ground to prove and shouldn’t be done unless you have supporting evidence.

 

 

"We found Hodge Jones & Allen to be thoughtful and attentive in the process of updating our wills; and the solicitor Josephine Russen could not have been more helpful. Very much appreciated."

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How can Hodge Jones & Allen Solicitors assist you?

Specialist Solicitors 

We are accredited by the Association of Contentious Trust and Probate Specialists and have over four decades of specialist experience in this area of law, helping clients receive what’s rightfully theirs in complex and high-value cases. 

We’ll ensure that the solicitor you deal with is the right match for your specific situation, helping you find the best possible resolution during what can often be a stressful and emotionally charged  time. 

Collaborative Expertise 

Our specialist Wills & Probate and Dispute Resolution teams work closely to contest wills, avoiding further legal disputes where possible to get the result you deserve with minimal stress, time and cost. We pride ourselves on offering a top quality, confidential holistic service and achieving the best outcome for you.  

Our team of highly experienced Wills & Probate specialists will provide you with the support and advice you need. Call us on
or request a call back.
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The London Legal Podcast

Contesting A Will

Brenel Menezes, Associate in the Hodge Jones & Allen’s Dispute Resolution team and Josephine Russen, Associate in Hodge Jones & Allen’s Wills & Probate team discuss contesting a will.

Click here to listen to the podcast.

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Frequently asked questions

I do not agree with the amount of inheritance left to me and think I deserve more. Can I make an application to the court?

Depending on your relationship to the deceased you may be able to make a “maintenance” application under the Inheritance (Provision for Family and Dependants) Act 1975 (“Act”). Section 1 of the Act lists the persons who may make an application to the Court for maintenance.

These persons are essentially:

  • Spouse or civil partner of the deceased;
  • Claimants who cohabited continuously for at least 2 years immediately prior to the deceased’s death
  • The deceased’s child/ren (child can include an adopted, fostered and step-child); or
  • Claimants treated as the deceased’s child (including adult children)
  • Claimants being “maintained” by the deceased.

Should you consider yourself to have been maintained by the deceased you may wish to speak to one of our team to assess the merits of your claim.

How long do I have to make a claim?

This generally depends on what type of claims you wish to make.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“Act”) must be issued within 6 months of the date of the grant of probate or letters of administration (grant of representation).

Challenges to a will generally have to be made within 12 years (but obviously the sooner the better) unless you are alleging fraud.

Do I need to go to court in order to resolve my dispute?

Many people don’t realise that one of the main legal objectives of litigation is to encourage negotiation, so that grievances can be resolved prior to escalating matters to court. Court should always be the last resort and you can be penalised for escalating matters to court without showing evidence of prior negotiation.

Our skilled and experienced solicitors are able to assist you in negotiating the best settlement and help you to resolve your case swiftly, reducing court costs and legal fees.

Could I use a form of Alternative Dispute Resolution to negotiate settlement?

Parties are encouraged to negotiate settlement of a dispute and may choose to use a form of Alternative Dispute Resolution (ADR). There are many methods of ADR available to clients – these include third party facilitators through mediation, third party decision makers through arbitration, third party informed opinions through early neutral evaluation, and permanent and or temporary decision making through independent adjudication.

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