Three Points to Consider Before Contesting an Estate

Updated on May 1, 2020
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Kate has over eight years of experience as an employment and personal injury legal executive. She runs LawCat, a legal explanations website.

Losing a loved one, be they relative or dear friend, is always difficult. These times can be made more difficult if you suddenly find yourself in a situation where you might have to consider bringing a claim against that person’s estate.

There are many reasons that you might have for needing to bring a claim against the estate. Perhaps you were expecting a gift and were relying on receiving it only to find yourself lacking said gift. Or maybe you relied on the deceased to provide for you and suddenly find yourself without a portion of your income. Or perhaps you worry that the deceased has been "tricked" into making a new will by someone else.

Whatever your reason, bringing a claim against an estate, also known as contesting an estate, is not a decision to make lightly. You should take the time to consider your reasons behind wanting to contest the estate and the possible outcomes and consequences of doing so. This article will discuss the three key points you should consider before bringing a claim against an estate.

1. Do You Have a Right to Contest the Estate?

Only certain people have the right to contest an estate. You have to be someone with a "beneficial interest" in the estate or someone with a "potential beneficial interest." This means that you must be someone who either received a gift (a benefit) from the estate or someone who expected to receive a gift (a benefit) from the estate. You will be required to prove this if you want your claim to be successful.

This means that if you received a benefit from the estate but were expecting something else other than what you received, then you will have to prove that. Evidence could be something as simple as a letter from the deceased.

But what if the deceased only made a verbal promise to you? If the deceased promised you a lump sum, for example, but did not make this promise in writing, then you may struggle to prove the promise existed. But if you can prove you acted on said promise, then this will be taken into consideration.

For example, if you were about to purchase a property but the deceased told you not to as they would leave you their home in their will, and you then spent your deposit money fixing up the deceased person's property thinking it would become yours after they died, this could be considered proof that you were acting on a non-written promise.

You can also bring a claim if you were financially dependent on the deceased but have either not been provided for at all or not been provided for enough. This is known as a Dependency Claim and is brought under the Inheritance (Provision for Family and Dependants) Act of 1975. You must be able to prove that you were financially dependent for this claim to be successful.

When considering a claim for dependency, the court will take into consideration your age, the length and nature of your relationship with the deceased and what you have received under the will.

You can also contest an estate if you believe that the deceased lacked capacity at the time they made the will. Having dementia does not automatically mean someone lacks capacity. Someone can have dementia and still have the required level of capacity to produce a valid will. As long as it can be shown that at the time of the will's signing that the deceased had an understanding of the document they were creating, (that is, they knew that they were deciding what was to happen to their possessions after they passed and knew what their will said). They must also have understood and been able to recognise the possessions they had (that is, understand the extent of their estate).

You can also bring a claim if the will was not executed properly. For a will to be valid, it must be created in a certain way and signed by certain people. There are strict rules about who can witness a will, for example, and if these rules were not followed, then the will can be deemed invalid.

If you believe someone was putting undue pressure on the deceased (e.g. bullying, blackmailing or manipulating them into creating a will, then you can also bring a claim, but you will need to provide proof of why you believe this.

Lastly, you can bring a claim if you believe the will is a fake. If you have an honest belief that this will in question is not the deceased person's actual will but is, in fact, a forgery, then you can bring a claim. You will need evidence of why you believe it is a forgery; just claiming it is a forgery is not enough.

2. Are You Willing to Damage Your Relationships?

It’s an unfortunate consequence but one you must face up to, not everyone is going to be happy with you when/if you contest an estate. While you may well be on the right when you contest an estate, not everyone will see it from your point of view and follow through with your actions may damage, sometimes irrevocably, your relationships with certain people.

Having worked in probate for several years, I have seen family’s torn apart over a deceased members estate and the subsequent arguments that often break out. It is deeply disheartening to watch valued relationships become damaged over an issue that may not matter in a few months or years.

You will need to consider carefully what you value more. Is it more important to you to receive what you are due from the estate or is it more important that you maintain certain relationships?

You cannot always go back and fix what became broken.

3. Are You Willing to Invest a Lot of Time and Money Into the Process?

Contesting a Will is not easy or straightforward.

It is commonly acknowledged as one of the most difficult types of legal action to successfully bring (hence why skilled probate lawyers charge the amount they do). As said above it is not enough simply for you to say you want to contest the estate for a reason X you must be able to prove that reason X is valid with evidence and that evidence can be very hard to produce in certain situations.

Contested estates are also overcomplicated by long and detailed relationships between the deceased and their beneficiaries, family members and friends. During one case, I had to draw a diagram of all the individuals involved in a claim just to keep track of everyone and their relationship/history with the deceased. Having a multitude of individuals involved can also prolong legal matters as you wait for responses from people who simply do not want to engage with you, for example, Aunty Dora doesn’t approve of you contesting Uncle Wilber estate as it puts her inheritance at risk. So, when your solicitor reaches out to contact Aunty Dora, she puts the letter in the bin and refuses to answer the telephone, thus slowing the entire process.

With that in mind, you should strongly consider what benefit you will gain from contesting the Will while keeping in mind how much it is going to cost you.

Contesting a Will is not something that is normally carried out in legal aid or a no win no fee agreement, you will mostly likely be paying a solicitor privately at their hourly rate. This means it is important for you to try to estimate how much it will cost you to bring a claim and weigh it against how much you expect to receive, are you willing to bring a claim for £3,000.00 when it will cost you £5,000.00 to bring the claim?

Are you going to proceed?

Will you Contest the Estate?

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You should now have an understanding of the top three points you should consider before contesting an estate. Do you have a right to contest the estate? Are you willing to risk your relationships by contesting the estate? Can you afford to contest the estate?

This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.


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