20+ Years Experience
Specialist Will Contest
This article will provide you with a complete overview of the process of contesting a will in February 2024.
We will explain everything from the grounds to challenge a will to how you can fund the costs in Rochester. We will cover who can contest a will, why a claim can be made, and explain how each step of the legal challenge works.
As with many areas of the law, specific circumstances need to be accounted for, and we hope to have answered any possible questions you might have before deciding if this process is for you. Legal terminology can be difficult to comprehend for people without prior knowledge, so we have ensured that this article is as easy to understand as possible while providing you with crucial information.
You will also learn about the services that we offer in Rochester and how we can ensure a successful resolution to a legal challenge to a will.
Our team of experienced solicitors has a proven track record of helping clients successfully contest wills. Through the years, our firm has dealt with a wide range of will disputes while ensuring the resolution of these disputes with the outcome our clients hoped for.
Will disputes can be large or small. We do not choose our clients on the size of the claim. Our team is here to help, regardless of how complex the situation might seem.
We also understand how emotional this process can be for many people, so we always remain considerate of each client’s feelings.
Often, when a will is contested, then it means that there is a dispute between members of the same family in Rochester, who might all be in various stages of grieving. Therefore, we aim to always be sensitive while providing a service that should lead to our clients inheriting what they feel is right for them.
The legally acceptable grounds for contesting a will fall into two separate categories.
It is possible to dispute a will if it can be proven that it is invalid. That means that it does not satisfy the legal requirements to make it a valid will. Certain circumstances lead to a will being invalidated, which we will go into greater depth about shortly.
The second valid reason for contesting a will is if it can be proven that the will itself does not make reasonable financial provision for a family member. This can also be applied to a person who was financially dependent upon the deceased prior to his/her death.
There are six common grounds for contesting a will, which will fall into the aforementioned two categories.
Let’s now look at each in depth.
In simple terms, ‘testamentary capacity’ means that the document can be challenged if the deceased lacked mental capacity when drawing up the will.
Certain criteria must be met for a will to be legally regarded as being made by someone of sound mind. These criteria are a legal test that has been an important part of inheritance law in the United Kingdom since 1870. They are the following:
It is possible to launch a challenge against a will in Rochester on the grounds of testamentary capacity if any of these criteria haven’t been satisfied.
If the wishes of the person making the will have been superseded by those of someone else, then it can be evidence of undue influence. This tends to occur when either coercion or force has been used to alter the terms of a will.
Examples of undue influence include violence or the threat of violence against the person making the will.
It is, however, often extremely difficult to contest a will on the grounds of undue influence. That is because it has to be proven beyond any doubt that the terms of the will were wholly due to the influence used on the person writing the will.
Often, it is claimed that a beneficiary has used emotional blackmail to influence the terms of a Rochester will. For example, a family member or friend might constantly remind the testator of what they have done for them in the past. It is hard to prove that such comments have led to the testator putting the wishes of others above their own.
It is becoming increasingly common for the courts to accept undue influence as grounds for contesting a will. But it is still very difficult to prove unless there is clear evidence that coercion or force has been used to overpower a testator’s wishes.
It is crucial that the testator is aware of the contents of the will when signing it. This is assumed if the testator is of sound mind when the document is signed.
There are times, however, when further proof of this knowledge and approval of the terms of the will is required.
In cases where the person writing the will is incapable of hearing and/or speaking, then evidence of the testator’s knowledge and approval is needed.
This is also the same if the testator is paralysed or has lost the ability to speak or write when the will was drawn up. In this case, knowledge and approval can be questioned.
Blindness and illiteracy are also grounds for the courts to require further proof of the testator’s awareness of the terms of the will.
The validity of the will can indeed be questioned if the will was signed by someone other than the testator. It is only possible for a will to be declared valid if the other person was instructed by the testator to sign the will – usually because of incapacity – and that the testator was aware of all terms laid out in the document.
A valid will requires certain formalities to have been correctly followed. In cases when this hasn’t occurred, then it is referred to as a “lack of due execution”.
A properly executed will has to satisfy the following criteria:
If it can be proven that one of these legal requirements was not fully satisfied, then there are grounds for disputing the Rochester will. It will then be determined that the will was not properly executed, invalidating it.
A will is invalid in cases of forgery.
It can be classified as a forgery if the testator’s signature or witnesses has been made by someone other than the person it is assumed to be.
A will can also be classified as invalid if the contents of the will or the will itself have been forged.
If lies or dishonest aspersions have led to the terms of the will being altered, then it will invalidate the will as being due to fraudulent calumny.
There are some similarities between undue influence and fraudulent calumny. It will often occur when a beneficiary of the will has slandered another beneficiary, which has led to them being removed from the will.
For this to be proven, then evidence has to show that the testator’s choice for disinheriting a beneficiary can only be explained by a false claim. It has to be proven that a false claim was made with the intent of causing the testator to disinherit someone. The claim must also be believed to be false by the person making the claim in Rochester.
Fraudulent calumny occurs most commonly within families. For example, one child might tell her parent that her sibling has a secret gambling addiction. The child tells her parent this, intending to poison her sibling’s character, hoping that it leads to the parent leaving her the whole estate.
It is possible to contest a will on a “no win, no fee” basis. Usually, will dispute solicitors only accept a client on these terms once the claim has been assessed. If the law firm determines that there is a good likelihood of the claim being upheld, then they will likely enter into a conditional agreement with the client.
An agreement of this type will usually mean that there are conditional fees that will only be paid upon a successful contesting of a will. If you win the case, you will be required to pay the fees. If the case is lost, the fees will be covered by the law firm representing you.
On top of all the legal fees, you will be required to pay another fee if the case is won. Often referred to as a “success fee”. This fee can be substantial depending on the law firm. It should be considered before entering into a “no win, no fee” agreement.
At our Rochester law firm, we will consider a conditional fee agreement with a client upon an in-depth assessment of the claim being made.
Our specialist team is available to discuss payment options with you. If you believe a no-win no fee agreement would benefit you, do not hesitate to contact us.
It needs to be established first that there are grounds for contesting a will. To do this, it is recommended that you seek legal advice. If it is believed that a client has these grounds, then a claim will then be made, and afterwards, the dispute will be resolved.
Let’s have a look at both parts of the process more closely.
The first stage of contesting a will requires a specialist solicitor to submit a formal claim to the Probate Registry Office.
Once the claim has been made, the execution of the will is then paused until the claim has been resolved. If anything occurs regarding the probate during this time, the person making the claim must be informed of these developments.
This process takes, on average, about half a year to be completed. The process can take longer in complex cases or those that go to court. It is usually required for an application to be made to prolong the application with such claims.
Dispute resolution can be achieved through two means.
Estate disputes can be settled through mediation, which avoids the need for the claim to be taken to court. This tends to be the ideal solution for all involved, and your legal team will strive to resolve the dispute at the earliest stage process. That allows everyone to move forward following the loss, and reconciliation is often more likely as a result.
Unfortunately, dispute resolution is not always successful. Inheritance disputes can be attritional processes that end with the need to issue court proceedings. Litigation requires time and money. Contested wills that go to court can take a while until the dispute is resolved, with court fees and legal costs stacking up.
Our specialist solicitors will advise you in such cases of the costs involved. You can then decide if you wish to go down the alternative dispute resolution route of court if it becomes clear that it is the only means of resolution.
It is important to understand that the process of contesting a will is a timely one. It can be emotionally and financially draining. An inheritance dispute tends to be between Rochester family members or people who know each other very well.
Before any claim is made, it is highly recommended that expert legal advice – such as that our firm offers – is sought so that you are aware of what the process entails and your chances of a successful claim.
There are various options for contesting wills. Our specialist Rochester lawyers can advise you on which method to use depending on your specific claim. In most cases, we will recommend one of the following two methods for contesting a will.
The first route is to challenge the validity of the will. To do this, it must be proven that the will has been invalidated due to the grounds we previously explained in this article.
If it is proven that the will is invalid due to one of these reasons, then one of two outcomes will occur. The estate will either be passed to beneficiaries based on the most recent valid version of a will or due to rules of intestacy.
In cases where it is impossible to question the will’s validity, it will be recommended that a claim be made under the Inheritance (Provision For Family and Dependants) Act 1975 for reasonable financial provision.
The time limit for contesting a will depends on the method used for making a claim.
In cases where a claimant questions the validity of a will, theoretically, there is no time limit. While it is true that such a claim is not legally dependent upon a time limit, in reality, it is extremely important that this claim is made as soon as possible. Why? Because once the deceased person’s estate has been distributed, then it is much harder to contest the will.
It is only possible to contest a will up to six months after the grant of probate when claiming the Inheritance (Provision For Family and Dependants) Act 1975.
A six-month deadline is also set for any claim made to rectify the will through Section 20 of the Administration of Justice Act 1982.
There is currently no set amount when it comes to contesting wills. Each person’s claim will be different to another’s. In short, the more legal work required, then the more expensive the process will cost. If court proceedings are brought, a legal team will need to be paid for, and if the claim is lost, then the winning party’s costs might also need to be covered by the losing party.
It is recommended that anyone considering contesting a will speak to probate specialists as soon as possible. After an initial consultation, it should be clear what legal costs you can expect to encounter.
Our team of experts will gladly speak to you about your possible claim and give you an idea of the possible cost of the whole process.
If you have legal grounds to contest a will, then it is recommended that you make a claim. As we’ve previously stated, one downside is the possible cost of the process. Fortunately, there are options for funding the legal process.
We’ll now look at each option in depth.
Once it has been determined that a Rochester claimant has good grounds for contesting a will, then a legal firm might offer a conditional fee agreement. This is more commonly referred to as a “No Win, No Fee” agreement.
An agreement of this sort means that the claimant is only liable for fees if the will is successfully contested. On top of the legal expenses that have been accrued during the claim process, an added “Success Fee” will need to be paid.
There are pros and cons to entering into such an agreement. Of course, the biggest advantage is that an unsuccessful claim will not cost you a penny.
If you don’t have the resources to instruct lawyers privately, then this might be the best option for contesting a will. The drawback is that a significant amount of the money you received upon winning the claim will go to the law firm representing you.
In certain circumstances, our firm will offer a “No Win, No Fee” agreement, so make sure to contact our team to see if this is the best way of funding your claim.
Another service our firm offers is the ability to enter into a DBA (Damages-Based Agreement). In such cases, you will be liable for any costs accrued by our lawyers if your claim is successful. However, these costs will be partially or fully covered by the losing party. This will be achieved through an order for damages to be made against the other party.
We recommend this route to claimants who expect to benefit from a monetary payment at the end of the claims process.
This agreement will differ depending on the specific claim being made. We recommend you discuss this funding scheme with our team if you are making a high-value claim.
In certain circumstances, it is possible to delay any fee payment until the dispute has been resolved.
The fees will need to be paid regardless of the outcome of the claim. For that reason, we only recommend this agreement if the client can cover our costs in the unlikely event that the claim is unsuccessful.
It is possible to fund the proceedings privately if you have access to the money to cover all costs.
We believe that it is important for any private claimant to fully understand all possible costs that could arise during the process. Our services are available for a wide range of budgets, with more expertise requiring a higher fee. Regardless of your budget, you can be assured of quality service from qualified solicitors who aim to provide you with a successful claim.
If you would like an estimate of how much the process will cost, then do not hesitate to contact our team and set up a meeting.
If you have legal expenses insurance, then this is an excellent way to cover the costs of a claim. It can cover legal costs and ensure that you are not completely liable for extreme fees in the case of an unsuccessful claim.
We will gladly discuss this route with you during an exploratory meeting. Contact our team right away if you have legal expenses insurance.
There are various after-the-event insurance policies available which can be used to cover legal fees or damages if you are liable after an unsuccessful claim.
We recommend speaking to our team to see if this could be an option for you.
There is no set rule for who has to pay upon the resolution of trust disputes. Generally, however, the responsibility for the legal costs will need to be paid by the losing party.
Therefore, in cases of contested wills where the claimant is unsuccessful, you will likely need to pay both your costs and the winning party’s costs. There are some circumstances where this isn’t the case, but it is most likely that an unsuccessful claimant will be liable to pay the fees in this situation.
If a claim is successful in Rochester, then the courts usually suggest that the winning party pay for their fees through the newly inherited estate assets
As we have stated earlier in this article, trust disputes can become extremely expensive if they are not settled before going to court. In some cases, the costs can even end up being more than the estate assets, meaning the winner can still end up in debt due to contesting the will.
Our team of contentious probate experts always strive to settle probate matters early. We have experience in ensuring that our clients get the desired result through negotiation and mediation.
Unfortunately, legal aid cannot be used for contested wills.
We recommend using one of the alternative funding options mentioned previously. A good option for anyone unable to afford fees upfront is to use a conditional agreement, widely known as a “No Win, No Fee” agreement.
Our firm offers a wide range of services related to contested wills.
We can provide you with representation for defending a will if your inheritance is being disputed by someone. In such cases, we strive to ensure that the deceased person’s wishes are provided.
We can also support claimants who feel that the true wishes of the will writer have not been enacted. We can offer our services in cases of an invalid will, undue influence, contentious probate, contentious trusts, and various other grounds for challenging a will.
There are strict rules in place regarding when a will can be contested in Rochester. For that reason, it can be difficult to challenge a will post-probate. While it is difficult, it is not necessarily impossible. The main problem in such cases is that costs are much higher than during the pre-probate phase. It is also likely that the process can take much longer.
If you are considering a post-probate challenge to a will, then we recommend contacting our legal experts as soon as possible. We can discuss your options and explain all the potential outcomes you may encounter.
Time limits depend on how the will is being contested.
If the claim is that there is no valid will, in accordance with the Wills Act 1837, then there is no time limit. For example, a late challenge can be made if it is discovered that the will has not been properly signed. In most cases, however, validity is challenged on terms such as lack of testamentary capacity. Therefore, it is recommended that a claim based on the Wills Act 1839 is made as early as possible.
Any challenge made under either the Inheritance Act 1975 or Section 20 of the Justice Act 1982 has a six-month deadline from the date of the grant probate.
All claims made after a person’s death regarding their estate fall under the umbrella term of “Contested Probate” or “Contentious Probate”. This includes all the grounds for a challenge that we have explored in this article, from lack of testamentary capacity to a lack of reasonable financial provision.
Other circumstances fall into contentious probate. These include when the person with the will in his/her possession does not allow it to be released. Another similar situation is when the executor of the will continues to enact probate despite there being a challenge to the will.
Our firm is highly experienced in working with cases of contested wills. Please do not hesitate to contact our team if you want to challenge or defend a will.
We can guide you through the process from start to finish while ensuring you get the desired resolution.
In theory, the law recognises handwritten wills. There are, however, certain requirements for such wills to be declared valid. It is necessary that they are witnessed by a minimum of two people. This does not occur in many handwritten wills, which makes it clear that the will was written in suspicious circumstances.
Handwritten wills are unusual. It is rare for a solicitor not to be instructed in preparing a will. When this occurs, then it is necessary that strict legal requirements are met to ensure that a will is valid. There is a good chance that these requirements have not been met with a handwritten will. It is also possible that a beneficiary has taken advantage of a lack of testamentary capacity or exerted undue influence in the case of a handwritten will.
If you doubt that a handwritten will was produced when the deceased didn’t have the requisite mental capacity to make an informed decision on his/her estate, then we recommend contacting our team.
It isn’t necessary to involve the courts when contesting a will in Rochester. We recommend that disputes are settled before reaching this stage. That helps to keep costs down and ensure that the dispute doesn’t take a long time to resolve. That allows people to move on after losing someone close to them.
To settle a dispute before going to court, a negotiation and mediation process takes place, allowing the opposing parties to reach a settlement.
The Inheritance Act was passed in the UK Houses of Parliament in 1975. Its purpose is to allow people who have been wrongly excluded from a will to apply for the financial provision that was not provided in the will. This occurs if no reasonable financial provision was laid out in the will.
Only certain people can make a claim with this act. These include spouses and civil partners, an ex-civil partner or former spouse, someone who was in a relationship for a minimum of 24 months before the person’s death, children of the deceased (including non-biological children), and anyone financially dependent on the deceased prior to their death.
Let’s have a look at some commonly asked questions regarding contested wills.
The career of the deceased is irrelevant. If there is just reason to contest a will, then it can be contested. Of course, it can be true that solicitors might be more likely to ensure that all legal requirements have been met when drawing up a will. But this is not always the case, especially when the mental capacity of the deceased has been compromised, perhaps due to old age.
The cost will depend on how much work is required for the process. A quick settlement will not cost anywhere near as much as one that ends up in a court battle.
There are many options for funding a claim against a will. “No Win, No Fee” can be an excellent option if you don’t have the funds upfront, but there is a good chance of you winning the claim.
Contact our team to discuss your possible claim. We can estimate how much the claim might cost and explain your payment options.
It depends on the challenge being made.
If the validity of the will is being called into question, then there is no time limit. It is, however, highly recommended that the claim process begins as early as possible. After probate has been granted, then it will be a more timely and expensive process.
Contesting a will through either the Inheritance Act 1975 or Section 20 of the Justice Act 1982 has a deadline. You need to begin proceedings within half a year after the date that probate has been granted.
Understandably, one might consider acting on one’s own behalf due to the high costs of instructing a solicitor to help contest a will. This is legally allowed. It is, however, strongly advised that you don’t consider this. The process requires expert knowledge.
If costs are an issue, then contact our team, and we can discuss your options. You will be much more likely to resolve the claim in your favour if you have legal representation.
Yes, this is a possibility. It is highly dependent on specific circumstances. If this is something that you are considering, then contact our team. Once we know what your situation is, then we can advise you as to whether it is possible or not.
This is possible. It is rare for it to occur, as usually the executor has been given the privilege because of being trusted by the deceased. In situations such as this, it is advised that the executor relinquishes the role. It is not possible for the person to execute the terms of the will if he/she has launched a claim against the will.
As we have explained in detail earlier in this article, the process has two steps.
First, a formal claim is submitted. It can take six months for the claims process to be completed.
Second, the dispute will be resolved. This can either happen through negotiation or mediation. It can also happen through a court case.
You can find a detailed explanation of the process earlier in this article.
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Only people with a vested interest can challenge a will.
The list of people legally allowed to contest a will are:
As long as it is proven that the will is not valid, then it is possible for it to be overturned once probate has been granted.
If the sibling is mentioned in the will or a previous will, or if the sibling is financially dependent on the deceased, then the will can be contested by them. There are other cases where it is possible too.
If you’re a sibling considering a challenge to a will, then get in touch with our team, and we can explain your options.
Yes. If a grandchild has a vested interest, then he/she can contest a will.
It depends on how it is being contested. We have lots of information about deadlines earlier in the article.
Getting a copy of a will is possible after probate has been granted. It will be placed on the Probate Search area of the UK Government’s website.
If you have not been mentioned in the will, then this is likely the only time you can see it. The executor of the will or his/her legal representation might provide you with permission, but they are not legally required to.
We provide services for anyone contesting or defending a will. Our team of experts will ensure a resolution that suits your needs. Contact us now to discuss your options.
Make sure you contact us today for a number of great Will Contest services in South East.
Here are some towns we cover near Rochester.Chatham, Gillingham, Gravesend, Aylesford, Ditton
We absolutely love the service provided. Their approach is really friendly but professional. We went out to five different companies and found Will Contest Solicitors to be value for money and their service was by far the best. Thank you for your really awesome work, we will definitely be returning!Aaron Read
We have used Will Contest Solicitors for many years as they are certainly the best in the UK. The attention to detail and professional setup is what makes this company our go-to company for all our work. I highly recommend the team for the immense work - we highly recommend them!Ewan Barker
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