Contesting a Will: Cost, Time Limits, After Probate and Who Can Claim

Yes. In England and Wales a will can be challenged, but only on recognised legal grounds. Feeling that a will is unfair is not enough on its own. Most cases fall into one of two broad routes, and which one applies shapes everything else, including time limits and cost.

• Challenging whether the will is valid. Here you argue the will should not stand at all, for example because the person lacked mental capacity when they made it, did not know and approve its contents, was put under undue influence, or the will was not signed and witnessed properly, or was forged. If a will is set aside, an earlier will, or the intestacy rules, will usually apply instead.
• A claim for reasonable financial provision. Here the will is accepted as valid, but you argue it does not make reasonable financial provision for you. These claims are brought under the Inheritance (Provision for Family and Dependants) Act 1975, usually called an Inheritance Act claim. They can also be made where there is no will at all.

There are other, less common claims too, such as where someone was promised an inheritance and relied on that promise to their detriment. Our will disputes page explains each of the grounds in more detail.

For a validity challenge, you normally need to show you would be better off if the will were set aside, for example because you benefit under an earlier will or would inherit under the intestacy rules.

For an Inheritance Act claim, the law sets out who can apply. In broad terms, the categories are:

• the husband, wife or civil partner of the person who died;
• a former husband, wife or civil partner who has not remarried or formed a new civil partnership;
• someone who lived with the person as if they were married or in a civil partnership for the whole of the two years immediately before the death;
• a child of the person who died, including an adult child;
• someone who was treated as a child of the family, such as a stepchild;
• anyone who was being maintained, wholly or partly, by the person who died, immediately before the death.

Being in one of these categories gives you the right to bring a claim, not an automatic right to succeed. The court looks at a range of factors, including the needs and resources of everyone involved, the size of the estate, any obligations the person had, and the reasons behind their decisions.

Time limits matter, and they depend on the type of claim.

• Inheritance Act claims must usually be issued at court within six months of the date of the grant of probate (or letters of administration). The court can allow a late claim, but it has a discretion and there is no guarantee, so it is unwise to rely on it.
• Validity challenges generally do not have the same fixed deadline. That does not mean you can wait. Delay makes evidence harder to gather, and once the estate has been shared out, putting things right becomes more complicated and more expensive.

If you have concerns about a will before probate has been granted, a solicitor can enter a caveat at the Probate Registry. A caveat stops a grant being issued for six months, and it can be extended. It gives time to investigate, but it should only be used where there is a genuine concern, because the court can look at how it was used when deciding who pays costs.

The simple message is to take advice early. A short conversation now can protect options that might otherwise be lost.

Yes, in many cases you can. Probate is the court’s confirmation that the executors have authority to deal with the estate; it is not a final ruling that the will is beyond question.

• A validity challenge can still be made after probate. If it succeeds, the court can revoke the grant, and the estate is then dealt with under the correct will or the intestacy rules.
• An Inheritance Act claim can be made after probate, but the six month clock starts from the date of the grant itself. That is why acting quickly is so important.

Executors are generally protected if they distribute the estate after the six month period without notice of a claim, although a claim against beneficiaries who have received assets may still be possible. If you think you may have a claim, it is often sensible to write to the executors promptly, so they know not to distribute while the position is clarified.

Disputes about how executors are running an estate, rather than about the will itself, are covered in our article on what contentious probate means.

This is the question most people ask first, and it is a fair one. There is no single figure, because the cost depends on the case. The main things that drive it are:

• How early the dispute is resolved. Many claims settle through correspondence or mediation without a court hearing, which keeps costs far lower than a case that goes to trial.
• The type of claim. A capacity challenge may need medical records and expert evidence, while an Inheritance Act claim focuses on finances and needs.
• The amount of evidence, including witness statements, the will file kept by whoever drafted the will, and financial documents.
• How the other side responds. A cooperative approach shortens matters; an entrenched one lengthens them.

On who pays, the general rule in court proceedings is that the losing party pays a large part of the winner’s legal costs, but the court has a wide discretion and there are exceptions in will disputes. Costs are not automatically paid out of the estate.

At Symes Bains Broomer we never leave you guessing. Before any work begins, we look at your situation, explain your realistic options and give you a clear estimate of costs for the next stage, which we keep under review as the matter develops.

A will dispute does not have to mean a bitter court battle. The courts expect people to try to settle disputes before and during proceedings, and many cases are resolved by agreement. Sensible steps include:

• getting advice early, before positions harden;
• asking for the will file and medical records at the outset, which can quickly show whether a challenge is worth pursuing;
• setting out your case clearly in a letter, so the other side can consider it properly;
• using mediation, where an independent mediator helps everyone find a solution, often in a single day.

A settlement can be more flexible than a court order and can help preserve family relationships, which matters to many of the people we help.

Sometimes. Grandchildren are not automatically in the list of people who can bring an Inheritance Act claim. A grandchild may be able to claim if they were treated as a child of the family by the grandparent, or if they were being maintained by the grandparent immediately before the death, for example where a grandparent was paying for their upkeep or housing.

A grandchild who would benefit under an earlier will, or under the intestacy rules, may also be able to bring a validity challenge. Every situation is different, so it is best to talk it through with us.

It varies a great deal. A claim that settles after early correspondence or mediation may be resolved within months, while a case that goes all the way to a court hearing can take considerably longer. Early advice, good evidence and a willingness on all sides to negotiate are the biggest factors in reaching a quicker outcome.

Funding options depend on your circumstances and the strength of the claim. Some people have legal expenses cover through a home or other insurance policy, so it is worth checking your documents. We will talk you through the options that may be available for your case, and how costs might be recovered if the claim succeeds, before you commit to anything.

Our Wills & Probate team, including Partner Andrew Horwich and Associate Solicitor Thomas Jordan, advises people who want to challenge a will and executors and beneficiaries who need to defend one. We help clients in Scunthorpe, Goole and across North Lincolnshire and the East Riding, and further afield.

We will listen, tell you honestly whether you have a claim, and explain the likely costs before you decide what to do. Find out more on our will disputes page, or call our Scunthorpe or Goole office.