How To Contest a Will After Probate

Stephen Lawson, our Head of Contentious Probate at Nicholson Jones Sutton, considers this question:

It is important to understand what this question means since there are two different ways to “contest” a Will after a Grant of Probate has been issued by a Probate Registry.

A Grant of Probate is the document that gives powers to Executors to collect the assets of the Estate, to pay the debts and then to distribute the Estate. If there is a very small Estate, then sometimes a Grant of Probate isn’t necessary. Often banks and building societies will release money to named Executors without a Grant of Probate if they regard the amount held in an account as “small”. Of course, if the person who died owned shares, Premium Bonds or a house then it will be necessary to obtain a Grant of Probate.

A Will can be contested on the grounds that it is invalid. A Will might be invalid for example: 

• Because it has not been signed or witnessed properly
• The person making the Will didn’t have sufficient mental capacity to do so (this is known as “Testamentary Capacity”)
• The person making the Will was subject to undue influence or didn’t know and understand what was in the Will.

For these cases it is much easier to contest a Will before a Grant of Probate is issued – so we always urge people who think they might have a claim to seek early legal advice.

If a Grant of Probate has not been issued then it is relatively easy to stop the Executors getting a Grant of Probate – for example by registering, what is known as, a “Caveat”. For the reasons we have explained if the Executors can’t get a Grant of Probate, then they probably can’t collect the majority of the Estate assets, and this forces them to deal with a claim.

There is, however, no time limit to contest a Will so even if a Grant of Probate has been issued it is still possible to say that the Will wasn’t valid for one of the reasons we have explained – but it makes it more difficult for someone seeking to challenge the Will because the Executors already have the ability to get their hands on the Estate assets. It also makes it more difficult to challenge a Will if the Estate has been distributed – or paid out to the beneficiaries.

If a Grant of Probate has been issued, then it is still possible to make a claim for reasonable provision under the Inheritance (Provision for Family and Dependents) Act 1975. A claim like this can be made before or after a Grant of Probate has been issued and we usually suggest that Claimants should make a claim as soon as possible so that attempts can be made to resolve a claim without the need for legal proceedings. There is, however, a time limit to make a claim for reasonable provision under the Inheritance Act. Such a claim must be made within six months of a Grant of Probate being issued. The Court does have a discretion to extend this time limit in some limited cases – but it is unwise ever to proceed on the assumption that an extension of time will be issued.

In simple terms the moral of the story is “you snooze you lose”.

Our team has extensive experience dealing with Inheritance Disputes matters. We are sympathetic, understanding, and are here to help you every step of the way.

We are here to help. We can get it sorted. It’s what we do. Call us. It’s free to ask.