In England and Wales, once a will has been granted probate, the estate can be distributed to the beneficiaries named in the will. Probate is the legal process that confirms the validity of the will and gives the executors authority to manage the deceased’s estate. However, receiving a grant of probate does not mean the will is beyond challenge. It is still possible to contest a will after probate has been granted, though the process can be more complicated.
At Blackstone Solicitors, we advise clients across England and Wales on their options and rights when seeking to contest a will post-probate. This article explains the circumstances in which a will can be challenged after probate, the legal grounds for such disputes, and the practical steps involved in pursuing a claim.
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What Does Probate Mean?
Probate is the official confirmation by the court that the will is valid and the executors have the legal authority to administer the estate. Once probate is granted, the executors can distribute assets according to the will’s terms.
However, probate is granted based on the evidence presented at the time of application. It does not prevent someone with a legitimate interest in the estate from challenging the will later if new evidence emerges or if they believe the will is flawed.
Can You Contest a Will After Probate?
Yes, it is possible to contest a will after probate has been granted, but there are important limitations and practical considerations:
- The challenge must be brought promptly. There is no fixed statutory deadline for contesting a will after probate, but delays can be detrimental. Courts expect challenges to be made as soon as possible once grounds for dispute become known.
- The person contesting the will must have standing, meaning they have a sufficient interest in the estate. This usually includes beneficiaries under the will, those entitled under an earlier will, or close family members who might have a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
- The grounds for contesting a will after probate are the same as those before probate but can be harder to prove once assets have been distributed.
Common Grounds for Contesting a Will After Probate
- Lack of Testamentary Capacity
One of the most common reasons a will is challenged is that the deceased lacked the mental capacity to make a valid will. This could be due to illness, dementia, or other factors affecting mental clarity at the time the will was signed. - Undue Influence or Fraud
If it can be shown that the deceased was pressured or coerced into making or changing the will, or if the will was procured by fraud, it may be invalid. - Improper Execution
A will must be signed and witnessed according to strict legal formalities. If these were not followed, the will may be invalid. - Rectification
Sometimes a will does not accurately reflect the deceased’s intentions due to a drafting error. The court can order rectification to correct mistakes if there is clear evidence of the deceased’s true wishes. - Claims under the Inheritance (Provision for Family and Dependants) Act 1975
Even if the will is valid, certain family members and dependants who believe they have not been adequately provided for may make a claim for reasonable financial provision from the estate.
Challenges Unique to Contesting a Will After Probate
Once probate has been granted, the estate may already have been partly or fully distributed, making disputes more complex:
- Recovery of Distributed Assets: If assets have already been given to beneficiaries, it may be difficult to recover them. The court has powers to order restitution but enforcing this can be complicated.
- Potential Liability for Costs: Contesting a will after probate can be expensive. If the challenge fails, the claimant may be liable for the legal costs of other parties, which can be substantial.
- Delay and Uncertainty: Challenges may cause delays in finalising the estate and create uncertainty among beneficiaries, sometimes leading to family rifts.
Time Limits and Prompt Action
Unlike some other legal claims, there is no strict statutory time limit for contesting a will after probate, but courts emphasise the importance of prompt action. Delays may lead the court to refuse permission to proceed on the grounds of “laches” or prejudice to other parties.
As a general rule, it is advisable to act quickly once there is reason to believe the will should be challenged.
How to Contest a Will After Probate
If you wish to contest a will after probate has been granted, the usual process is as follows:
- Seek Legal Advice
The first step is to consult a solicitor experienced in probate disputes. They will assess your claim, the evidence available, and the likelihood of success.
- Gather Evidence
Collect all relevant documents such as wills, medical records, correspondence, and witness statements. Medical evidence may be particularly important if capacity is questioned.
- Letter of Claim and Negotiation
Before commencing court proceedings, a letter of claim is usually sent to the executors or estate representatives. Sometimes disputes can be resolved through negotiation or mediation without litigation.
- Court Proceedings
If negotiations fail, a claim can be issued in the Probate Division of the High Court. The court will hear evidence from all parties and decide whether the will should be declared invalid, rectified, or whether a claim under the 1975 Act should succeed.
Practical Considerations
- Costs: Contesting a will after probate can be costly, so weigh the potential benefit against the expense and emotional strain.
- Impact on Relationships: Disputes over wills often cause lasting family conflicts. Consider whether alternative dispute resolution may be more appropriate.
- Professional Support: Blackstone Solicitors can guide you through the legal complexities involved.
Conclusion
Contesting a will after probate is possible but can be challenging. The same legal grounds apply as for pre-probate disputes, but the practical difficulties of recovering assets and the importance of acting quickly are heightened.
If you believe there are valid reasons to contest a will after probate, early expert legal advice is essential to assess your position and maximise your chances of success. Blackstone Solicitors is experienced in probate disputes across England and Wales, offering clear, compassionate, and effective representation.
How we can help
We have a proven track-record of advising upon all aspects of private client work. We will guide you through the process and ensure all checks are carried out swiftly and efficiently and we firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
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How to Contact Our Private Client Solicitors
It is important for you to be well informed about the issues and possible implications of contesting a Will. However, expert legal support is crucial in terms of ensuring a positive outcome to your case.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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