Contested probate

What should you do if you want to challenge a Will?

The last thing anyone usually thinks about when a family member or friend passes away is having to challenge their Will. Unfortunately for many reasons this is perhaps a more common occurrence than people think. The reasons for challenging the validity of a Will or for contesting probate are many and varied. This section looks at some of the common reasons and explains your options if you want to challenge a will.

Reasons for a Contested Probate

Probate is the winding up of an estate. All assets are collected in and then distributed to the beneficiaries under the terms of the Will. If someone who was not provided for under the Will believes that they should have received something, they can challenge the terms of the Will. This is called a contested probate. Reasons for a contested probate commonly include:

  • Failure by the deceased to leave adequate provision for a dependant
  • The Will was not executed properly (see below for the reasons)

Grounds for challenging the validity of a Will

For a Will to be valid, it has to meet certain basic requirements, which include:

  • The person making the Will must be 18 years of age or older
  • The person making the Will should not be under any undue influence when making it (i.e.: someone else should not be putting any pressure on the maker of the Will to leave any items under the will to them)
  • The person making the Will must be of sound mind and fully understand the impact of making the Will
  • The Will must be signed in the presence of two witnesses (these witnesses should not be a beneficiary under the Will or they will lose their inheritance but the Will will still be valid).
  • The Will is not a forgery

If any of these requirements were not satisfied at the time that the Will was made and probate has been granted where the Will is potentially invalid, the probate can be contested.

How to contest Probate or challenge the validity of a will

You must take prompt action to challenge the validity of a Will; making your claim within 6 months of a grant of probate. Advice should be sought from a specialist probate disputes solicitor with experience of contested probate.

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