Contesting an Invalid Will

You may be able to contest a Will if you feel that you have been unfairly left out or that that Will doesn’t provide for you enough. This includes:

• If you are named in the Will but received less than you expected
• If you were financially dependent on the deceased and have not received enough in the Will
• If you have been left out of the Will entirely
• If the deceased promised to give you something before they died, but didn’t
• If you are worried that the Will doesn’t accurately reflect the deceased’s wishes.

Making a claim will differ slightly depending on the circumstances of your dispute, but it’s usually made up of the same steps:

1. Investigation

We’ll examine the Will and any related documents (this might be property deeds, trust accounts, previous Wills made by the deceased).

If relevant, we may also gather medical evidence about the deceased, to understand their condition when they made the Will. This would be particularly important in disputes over whether or not someone had mental capacity to make a Will.

We might also get witness statements from those who knew the deceased, to better understand the full circumstances in which the Will was drawn up.

These investigations will help us confirm whether you can make a claim, and what type of claim it will be.

2. Mediation

Most disputes can be settled by an alternative dispute resolution method, such as mediation. This means that you don’t have to go to court, which can be costly and time-consuming.

Mediation typically takes place on one day, with a professionally trained mediator present as a neutral third party. The mediator’s role is to try to help you reach an agreement with the executor and the other beneficiaries.

3. Court

Some disputes cannot be resolved by mediation. If this is the case, the matter will have to be settled in court. This is rare, however – and if it does happen, we have the expertise to secure the best outcome for you.

Whatever the circumstances of your dispute, we’ll support you every step of the way – and we’ll give you a clear idea at the start of how long we think it will take, and the outcome we think you can expect.

Most claims take less than a year and don’t have to go to court. However, every case is different and time spans depend on the type of dispute and your individual situation.

Some disputes can be resolved quickly and amicably in a matter of months, but others might take years to conclude and involve going to court several times.

We’ll advise you at the start how long we think it will take. Whatever the situation, we always aim to resolve your dispute as quickly and efficiently as possible. We understand that this is a difficult time, and we’re here to help you through.

Most disputes can be resolved by negotiation and discussion, without having to go to court. However, sometimes this isn’t possible and court is the only way.

We understand that most people would prefer to keep their dispute out of court, and we will always do everything we can to try and reach an agreement by mediation. However, if your dispute does have to go to court, we will support you at every stage. We have the experience to handle court disputes efficiently and effectively, to achieve the best outcome for you.

The cost of a Will, trust or estate dispute varies from case to case, depending on time, complexity, and whether or not you have to go to court.

A dispute can be settled at any time if the parties can come to an agreement, and they can then decide how to split the costs between them. However, if an agreement can’t be reached and the case has to go to court, the court will decide how the costs will be paid.

We’ll work with you to agree a payment option that suits your circumstances. There are several ways you could pay for your case, including:

• No win no fee
• Legal Expenses Insurance (which you may already have as part of a home insurance policy)
• Payment on conclusion
• On a monthly basis.

Testamentary capacity is the legal term used to describe a person’s mental capacity or ability to make or alter a testamentary document, such as a Will. In general terms, someone must be ‘of sound mind’ to make or alter a Will. The legal test for someone having testamentary capacity is if they:

1. Understand that they are making a Will
2. Understand that the Will disposes of their assets after their death
3. Understand what assets are disposed of by the Will
4. Understand which beneficiaries may have a claim on their estate
5. Aren’t suffering from mental illness which affects their ability to decide the fate of their estate.

If it is proved that someone did not have testamentary capacity when they made a Will, the Will is invalid. A solicitor or Will writer should only accept instructions from clients that they believe to have testamentary capacity. As such, if they have concerns about this, it’s often prudent practice to request medical evidence before accepting instructions, or to ask a medical professional to act as a witness. That medical professional should be aware of and understand the legal test for testamentary capacity.

We'll enlist experts to analyse the Will and assess whether it has been forged. A handwriting expert, for example, can help determine whether a signature or even an entire handwritten Will has been forged.

We’ll then use this evidence to support your claim.

Fraud prevention is one reason Wills must be signed (or the signature acknowledged) in front of two witnesses who cannot also be beneficiaries of the Will.

You may be able to claim if mistakes made by the Will writer mean you’ve received less than you were expecting from an estate or nothing at all. This can happen when a Will isn’t drafted in accordance with the deceased’s instructions or isn’t executed properly, or in some cases not executed at all.

For example, you could claim if:

• Unnecessary delays meant that the deceased didn’t sign the Will before their death, despite having given clear instructions to the Will writer
• The witnesses did not actually witness the deceased sign the Will or acknowledge his/her signature in their presence
• The Will doesn’t reflect the deceased’s intentions and instructions.

If you’re disappointed with what you’ve been left in someone’s Will, our solicitors can investigate whether or not you’ll be able to make a claim.