On what grounds can you contest a will?
1. The Validity of the will
There are a number of reasons that a will may not be valid. If you believe that a will wasn’t produced, signed, or witnessed properly, you may be able to contest it under the Wills Act 1837. A will can also become invalid if it wasn’t executed correctly.
2. Testamentary capacity
If the deceased wasn’t of sound mind or lacked the physical capability to produce, sign and understand their will, then there could be a case to contest it. Mental illness or dementia are the most common examples of reasons for disputes the testamentary capacity of the deceased.
3. Claims for financial provision
Claims over financial provision occur when someone who was financially dependent on the deceased is left out of their will. This common type of dispute usually involves the children or the spouse of the deceased.
4. Undue influence
This arises when the will of the deceased was made or altered under the influence of someone else. If you think that there was any pressure on the deceased during the writing of their will, you could have a case against it.
5. Forgery or fraud
You could also have a case to contest a will if you believe that forgery, fraud, or foul play might have been involved.
How much does it cost to contest a will?
The reasons above are just some of the common causes for contesting a will. If you think that you might have a case, you should seek legal advice as soon as possible. There are a number of factors to consider if you're thinking of starting the process:
The cost of contesting a will depends on how complex the case is. Influential factors include the reason the will is being contested, the number of parties involved, and the types of evidence required for the dispute.
The length of time for a case to be settled is also a big factor in the cost.
Many types of disputes can be settled before they come to court. But if an agreement can’t be reached, be aware that court fees can be expensive.
You must also be aware that any legal fees don’t automatically come out of the estate of the deceased. Costs are usually determined by the court and paid for by the losing party. In some circumstances, the fees could be deducted from the estate.
Another factor that could complicate a dispute is if the deceased lived or held any assets abroad.
While it’s not possible to predict exactly how much contesting a will could cost, a solicitor would often be able to offer you several price structure to help you deal with the financial burden of an inheritance dispute.
There are certain elements that will increase the cost of contesting a will, so it’s always important to discuss with your solicitor whether the grounds you have for contesting are solid.
Things that can affect the cost of contesting a will
The grounds you use
The stronger the grounds for contesting the will, the quicker the process will be. This means fewer hours spent by your solicitor, and hopefully no need to go to court.
Certain grounds for contesting are more difficult than others to prove, but if you feel you have evidence or have access to documents that can make your case for you, this may be simpler. Always chat to your solicitor about the likely outcomes for your case and which grounds are the best for you.
Going to court will cost more, and the longer a case stays in court, the more the fees pile up. Many cases are settled out of court, which is less costly.
The sooner you lodge your complaint, the stronger your case looks. By waiting to contest, you not only face more difficulties with probate, but it can make your grounds for contesting weaker.
It’s difficult to predict how complex a case can become, but it’s worth being aware that complications can arise.
If the situation with the will is very complicated or becomes complicated whilst contesting, it may take your solicitor more time to find a strong case. These aren’t all ‘easy wins’ so it’s worth considering if the value of contesting is worth the time and money.
Your solicitor will be able to let you know if the case is particularly complex.
Are there extra costs when you contest a will?
If you start contesting early, before probate is granted, you can ask your solicitor to lodge a ‘caveat’ with the Probate Registry. This will cost £15 and will put a hold on probate being obtained.
You will need to get a copy of the will – if this isn’t granted by the beneficiaries, you can pay £10 for a copy.
What about mediation?
Mediation can be a lower-cost option when contesting a will, as it’s less adversarial. It can often cost around £2000-£3000 and involves discussing the issue directly with the beneficiaries until a compromise can be reached.
Obviously, this isn’t applicable in all situations, but for those where there is a positive or neutral relationship between the beneficiaries and those contesting, mediation may be a suitable option.
Who pays to contest a will?
Upfront costs for contesting a will are usually minimal. But the process can take a long time which makes the costs build up.
It’s also important to consider that for those who will struggle to survive while probate is paused, the case can cost more – spouses who have their joint accounts locked after the passing of their husband or wife for example. In some cases, costs may be recovered from the other side or upon receipt of the settlement.
It's always important to discuss payment issues with your solicitor as soon as possible.
How to contest a will
If you want to contest a will, be aware that there is often a time limit. You usually have six months to begin a claim once the executor of the estate in question has been given a Grant of Probate (see the legal right to manage the estate). If you think you have the grounds to contest a will, you should seek legal advice immediately.
Contrary to popular opinion, you don’t have to be a direct relative to have the legal right to start an inheritance dispute. You could be a partner, a close friend, or someone that was dependent upon the deceased.
As part of the process of contesting a will, you will have to acquire a copy of the will from the executor of the estate. However, if they’re not willing to share a copy, a solicitor can help you apply for a caveat - you can then lodge a formal claim to court.
Can you contest a will after probate?
It’s technically possible to contest a will after probate, but you should try to avoid it if possible.
Contesting a will after probate is more complicated because it’s harder to reassess everything once the assets have been shared among the beneficiaries.
If you want to contest a will after probate, you should contact a solicitor as soon as possible.
Contesting a will in Scotland
Contesting a will in Scotland is slightly different from the rest of the UK, and it can be more difficult.
The main difference is that the Inheritance Act of 1975 doesn’t apply in Scotland. This act is concerned with providing provision for family, spouses or other dependents who would suffer without provision from the will.
The grounds that are valid in contesting wills in Scotland are:
Facility and circumvention
Another clear difference in Scotland is ‘protection from disinheritance’ or ‘forced heirship’ which protects an automatic entitlement that children or a spouse should receive in a will. These are called ‘legal rights’. However, legal rights don’t determine how much a child should receive from a will if they don't feel they have received enough.
Legal rights also don’t apply to land and buildings – these can be passed on to anyone, not just direct descendants.
If you’re concerned about probate and think you may need to contest a will, you can fill out our quick quote form to compare highly qualified, specialised probate solicitors.
Updated on August 2023 by Andi Forsythe