An executor’s guide to defending a contested will

As an executor, you will already have a lot to think about when it comes to administering someone’s estate. What happens when you are faced with defending a contested will? What are your next steps?

In this guide, we aim to help you through the initial stages of defending these claims. We explain the circumstances in which a will is often contested and answer some of the commonly asked questions.

Who can contest a will?

Anyone can contest a will, provided that they have an interest in the estate. The most common reasons for contesting a will are made by someone who:

  • Is disappointed with the gift left to them in the will
  • Has not been included in the will, and they think that they should have been
  • Believes that the will is not valid

Someone who believes that they should have been included in the will may have been close to the deceased, and therefore believes that they should have been left a gift. These claims are usually made under the Inheritance Act 1975. Alternatively, this person may have been promised a gift by the deceased while the deceased was alive.

When is a will not valid?

A will can be invalid for a number of reasons, including:

  • Not being made correctly, in accordance with the laws which govern how to make a will (s9 Wills Act 1837)
  • The person who made the will did not have the mental capacity to do so
  • Someone forced the person to make the will
  • The person who made the will was not aware of its contents
  • Fraud, for example, false information was given to the person making the will, which then influenced their wishes which were included in the will
  • Forgery – this could be someone making the will in someone else’s name and forging their signature

What are my next steps?

1. Seek legal advice

A legal professional will be able to explain what information you will need to defend any claim, whether the claim being made is allowed, and what your options are for either settling the claim privately or going to court.

2. Gather any evidence you can to show that the will was made correctly

This could include notes prepared by the person who prepared the will about why the will was made in the way it was, and about the deceased’s mental capacity. If any medical reports were prepared, you should obtain these. Copies of previous wills made by the deceased are also very helpful, as they often shed more light on what the deceased’s intentions have been over the years.

3. Discuss your options for settling with the person making the claim.

It may be that they are wanting to receive a larger gift under the will, which other people named in the will are happy to agree to.

Can I still administer the estate while defending a contested will?

Usually, it is best to wait until any dispute has been resolved before administering the estate. At least, any steps taken to administer it are often limited to what is considered necessary. This can be disappointing for all parties involved, but will likely save a lot of added complication later on if you wait until the conflict has been resolved.

Sometimes, the person contesting the will may take steps to prevent you administering the estate or even obtaining the grant of probate. They will lodge what is known as a caveat with the Probate Registry. This caveat is a document which is held on the deceased’s record at the Probate Registry. It stops probate being granted for 6 months, unless you can agree for it to be removed in that time.

Read our guide to applying for probate here: How to Apply for Probate

How much does it cost to defend a claim?

As with any kind of litigation, legal costs can be unpredictable and difficult to estimate. You should discuss the potential costs of defending the claim with your legal professional, and they can also discuss the likelihood of the estate being responsible for paying these costs.

Other Useful Guides

Rules of intestacy

Probate directory