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HCR Law Events

16 March 2020

Contesting a will – top 10 frequently asked questions

1. Who can contest a will?

Anyone may be able to contest a will. If a will is overturned, then a previous will (if there is one) will become valid. Accordingly, one of the first issues to consider is whether you were provided for in the previous will. If there is no previous will, then the rules of intestacy apply. In other circumstances, you may be able to claim that the will did not provide you with a reasonable financial provision or that you were promised property by the deceased and changed your circumstances as a result of that promise

2. Can I stop the Grant of Probate being obtained?

Yes – we can enter what is known as a caveat which puts a hold on the estate, preventing the Grant of Probate from being obtained. This lasts for six months and can be extended for further six month periods. You must have grounds to challenge the will in order to put a caveat in place, otherwise, an application can be made to set aside the caveat.

3. Is there a time limit to bring a claim?

For a claim for reasonable financial provision, you must bring a claim within six months of the date that the Grant of Probate was issued. For other claims, there is no time limit; however, it will be in your best interests to bring a claim as swiftly as possible and before the estate is distributed.

 

Contact our Disputed Wills, Trusts & Estates team now.

 

4. How do I prove that someone made the deceased change their will?

An allegation of undue influence is very hard to prove because, unfortunately, the deceased would be the best witness. This is why it is important at the outset to gather evidence which may assist your case. We will investigate all the circumstances for you, including the will file and assess whether you have sufficient evidence to suggest that the deceased was made to change their will.

5. How are costs dealt with?

Contesting a will is a very emotional and time consuming process and it does involve significant costs. There are various ways that costs can be dealt with, and we are happy to discuss these options with you. With litigation, the general rule to costs is that the successful party will have a portion of their costs paid for by the losing party, but there are exceptions.

6. Can I get a copy of the deceased’s medical records?

We can apply for the deceased’s medical records, on the basis that you have a potential claim against the estate of the deceased. These records are helpful in building a picture of the physical and mental health of the deceased around the time the will was prepared.

7. Will a hand writing expert be needed?

Every case is different, but if you believe that the will may not have been executed properly, as it was not signed by the deceased, a hand writing expert may need to be instructed.

8. What is the role of the executors?

The role of executor is an important one and comes with various duties and powers. An executor must be impartial and must act in the best interests of the estate. There are often issues where an executor is also a beneficiary and confuses his two roles. If an executor is behaving improperly, this is something we can address.

9. Does it matter if we weren’t married?

If you were not married to the deceased, this will not necessarily prevent you from claiming against the estate in certain circumstances.

10. Are my parents allowed to cut me out of their will?

In England and Wales, a testator is free to change their will as many times as they like, at any time. However, if you are concerned about the circumstances in which the will was prepared or executed, then please do speak to us.

If you would like advice on bringing a claim against an estate, then we will be happy to help. Please contact Beth King-Smith, Head of Disputed Wills, Trusts & Estates on 01905 744842 or at bkingsmith@hcrlaw.com.

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About the Author
Beth King-Smith, Partner, Head of Disputed Wills, Trusts and Estates

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