Ask the Legal Expert: I think a Will is invalid and I want to contest this, but I don't know what to do

When a loved one passes this is understandably an emotionally difficult time, and, if you feel that the Will detailing what should happen with that person’s estate is invalid, you may not know where to turn. At JCP Solicitors, we have an expert, caring and approachable team who can help guide you and explain the next steps. Associate Solicitor, Tomas Davies, explains more:

A valid Will formalises your wishes for how assets are to be distributed after someone’s days. In the absence of a Will, the intestacy rules will apply, and an Estate will be distributed under strict rules that may contradict wishes.

A valid Will, or any amendments to a valid Will, must be:

• In writing
• Signed by the testator
• In the presence of two witnesses

We strongly suggest that independent legal advice is obtained if someone is considering making a Will. In our experience, the probability of a homemade Will not complying with the necessary rules to be considered valid is higher than that of a Will prepared by a legal professional.

There are a number of circumstances under which a Will can be contested and subsequently invalidated:

• The Will is not in writing, signed by the testator or witnessed by two witnesses (known as attesting witnesses)
• Lack of testamentary capacity
• Lack of knowledge and approval of the Will or its contents
• Undue Influence
• Fraudulent Calumny

A date that the Will was signed and therefore executed, is not a requirement, however, it is good practice to include it in the document. It is also important that the two attesting witnesses are not set to benefit under the Will as any gift made to them would be invalid.

If there is any suspicion that a Will may be invalid, it should be investigated as a matter of urgency.

Challenging a Will

It is common for those challenging a Will to lack sufficient evidence at the outset. Investigations need to be carried out, but this is difficult if you do not know where to start.

The most important piece of information at the outset is identifying if the person seeking to challenge the Will has a right to do so. Only those who benefit under the current Will, the most immediate preceding valid Will or the intestacy rules, may pursue a challenge.

Once those with the right to challenge a Will decide to pursue their investigations, certain information will need to be obtained in relation to the preparation of the Will and its execution. Professional Will writers hold a Will File which should contain all relevant documents to the Will’s preparation, including details of the steps taken by the Will writer throughout.

Further documentation may be relevant to the investigation such as medical and financial records which can often be volumous. Whilst it appears daunting to consider these documents, they may shed light on the issues in dispute that the Will file could not.

Contentious Probate Solicitors are experts in this field and can guide you through the process, whilst advising you of the options available at each stage.

Protection

A challenge to a Will should, where possible, commence prior to a Grant of Probate being obtained. A Grant is the Probate Registry’s seal of approval for a Will, i.e. they consider it to be a valid document that accurately sets out the testator’s wishes.

In the event that you wish to contest the validity of a Will, be sure to enter a ‘Caveat’ over the estate as soon as possible. A Caveat prevents an application for a Grant of Probate from progressing. This provides you with adequate protection and time to carry out your investigations into the Will’s validity.

Caveats last for 6 months and may be renewed within the last calendar month. There is an initial fee of £3.00, with additional fees of £3.00 with each renewal. The initial application can be completed via the UK government website. Presently, renewal applications must be made in writing.

Conclusion

Do not delay investigating a Will if the circumstances surrounding its preparation and execution are in doubt. Ensure that the necessary protection is in place to allow the investigations to commence freely, and always ensure that you obtain specialist advice at the earliest possible opportunity.

Our Inheritance and Trusts Disputes team are specialists in dealing with matters relating to Will disputes. Get in contact with us for any Will-related disputes and we will be happy to help. You can contact our expert team on law@jcpsolicitors.co.uk or call 03333 208 644.