When we think of contesting a will, scenes of bitter sibling disputes in front of an executor are automatically conjured up. However, most inheritance disputes don’t usually work that way in real life. Wills are legal documents administered by executors and probate courts per well-established procedures. How can you contest a will in the UK?
Determine Your Grounds for Contesting the Will
The first step to contesting a will is to have a basis for challenging it. Do you have an older will that states something different than the one being probated? Did the deceased promise you something, and you’ve failed to receive it from the estate? Did the deceased owe you money? Creditors always have a claim against an estate, though they may only have a few months to press their claim.
Are you a legal heir to the deceased but aren’t receiving a share of the estate? A will can exclude someone by name, but a legal heir who is overlooked in the will can contest it. You could also contest a will if you’re the heir of someone who was named in the will but has already died; the children or grandchildren of a deceased heir always have a case to claim their share of the estate. According to the-inheritance-experts.co.uk, you don’t necessarily need to be a blood relation to contest a will, often, a spouse, or someone who relied on the deceased for financial support can have grounds to contest the will.
Another basis for challenging a will is that the testator, the creator of the will, was incompetent at the time at which it was drawn up. This could be due to diminishing mental faculties or other. What matters at this point is fully understanding the legal basis for challenging the will that is being used for probate.
That you don’t like it is not enough. That you think it isn’t fair is not a valid legal reason for challenging it, since the law doesn’t say the property must be divided equally among heirs. That the deceased decided to draft you out in the final months of life and gave everything to your sibling may be a case, if you can show a prior will that said you were to be given an equal share of the estate or that that sibling may have had undue influence over the deceased when the new will was written.
Get a Copy of the Current Will
The next step to challenging a will is getting a copy of the will being used in probate. This gives you the information you need to know, such as whether or not you’re not receiving anything because it was the explicit will of the deceased. Or you may find that the executor is using an older will, while you have the most recent copy.
You may find that you’re specifically excluded as an heir, though you may be able to challenge this if the deceased was unduly influenced to change the document. Another basis for challenging the will is if the conditions that led to your exclusion have been resolved. Someone who was written out of the will due to addiction for instance could argue that they’ve straightened out, and thus they should be considered heirs again. If the will has conditions by which the person could inherit, you can challenge the will in probate and demand a chance to prove you’ve turned your life around.
You can ask the executor for a copy of the will. If they won’t provide it, you should contact a probate attorney to prevent a grant of probate being issued. This prevents the estate from being settled while you press your claim. Note that you want a copy of the will that’s going to probate even if your basis for challenging the will is that you have an older or newer copy of the will by the deceased.
Your Lawyer Makes Your Case
Your lawyer is now able to make the case that you should receive what is your due from the deceased’s estate. Perhaps your attorney may be able to show that you were owed money from the deceased or made promises that you should receive specific items. The solicitor will be able to do this using the correspondence, legal documents and other information you gathered at the first step of this process.
Around this time, research is done to determine what the deceased owns and the state of any property they held. Financial transactions and property transfers may be put on hold.
If you’ve argued that the deceased was incompetent, medical records will be pulled in order to prove that the person was not capable of issuing a valid will.
Sometimes the issue isn’t the will but the executor’s choices. An executor selling property that was supposed to go to you in order to raise money to pay off the deceased’s debts is acting against your interest and their explicit duty, but now your solicitor only has to take action against the executor. And the solution may be having someone else take over as solicitor. In other cases, the issue is a matter of accounting; if you aren’t receiving anything because the deceased ran up major debts in the last years of their life, no one may be receiving anything. However, your attorney can demand the financial reports from the executor to validate that there is nothing for you or anyone else to receive. If others have been taking items from the estate while you’ve received nothing, then your legal case can move forward against those essentially stealing from heirs like you.
If the deceased owed more than they owned at the time of their death, they may not have anything left to distribute. And it is possible that someone filing a claim against an estate didn’t realize that the money someone received were proceeds from life insurance or a trust that are not part of the assets distributed in probate.
The Case Goes to Court
Most challenges to a will don’t go to court because someone is able to prove that they’re an heir to the deceased, owed money or promised specific property. In these cases, the matter goes through an alternative dispute resolution or ADR process. However, sometimes the issue is resolved through a hearing. If the two (or more) sides cannot agree, then formal court proceedings may start.
The burden of proof is on the person arguing that the will is not valid or that they have a claim against the estate. If you’ve been challenging a will up to this point alone, seek legal assistance when the matter goes to court. You don’t want to end up with nothing but legal bills at the end.
If you’re thinking of contesting the will, understand your grounds for doing so and start gathering all the evidence you have. Get a copy of the will if possible or consult with an attorney to get one. And let your solicitor plead your case and determine what is going on. If you have a valid case, the issue may be resolved in mediation or go to court.