Can an Executor Contest a Will?

There are a number of reasons why those involved with a will may want to contest it - from potential mistakes to sections that are difficult to understand or that are disagreed upon. Both the beneficiaries and the executor have the right to challenge a will, but the latter may need to relinquish the role of executor, as challenging the will may be considered to go against their duty.

In the following guide, the expert wills and probate solicitors at JMW outline how an executor can challenge a will and explain the rules that govern this process.

How to Challenge a Will

'Contentious probate' is the term given to the process of challenging a will or any other dispute about an estate after someone has passed away. Anyone who is considered to have an ‘interest’ in the will - meaning beneficiaries, loved ones of the deceased and others who might have expected to be beneficiaries - may potentially bring a challenge. In most cases, this even includes any executors appointed to administer the will.

Wills can be challenged and amended under certain circumstances, and legal action will be necessary as the court must agree to the changing of the will. This can often be done through mediation and discussion, facilitated by professional solicitors, but may escalate to court proceedings if an agreement can't be reached. In complex cases where there are differing opinions, such as instances that involve more than one executor who can't agree, this can often be necessary.

To successfully challenge a will, you must prove that:

• It was signed incorrectly or not at all: a will must be signed by the testator and witnessed by two appropriate people. Beneficiaries or relatives of the beneficiaries are not appropriate witnesses. Any mistakes in how the will was signed or witnessed could render it void.
• The testator lacked testamentary capacity when they wrote it: they may have been suffering from mental illness, or might not have understood what they were doing or the value of their estate. A testator must understand the consequences of their decisions for their will to be legitimate.
• It was forged or is fraudulent: the signature may have been forged, or the will may have been edited without consent from the testator. This can happen when a will is not stored securely by a solicitor.
• The testator was pressured into writing the will: if the document was not written by the free will of the testator, or they were pressured into it and thus did not make the decisions they would have otherwise made, it may be subject to a legal challenge.
• The will does not make reasonable financial provision for you: if you are in a certain category of person named under the Inheritance Provision for Family and Dependents Act 1975, you can apply for financial provision even if the will does not make this provision.

Sufficient evidence must be gathered and submitted to the court, which will then make the decision as to whether the will is valid. If the court deems the will invalid, an earlier will or an intestacy might take effect. If you are applying for financial provision, the court may rule that the will is valid but that you are entitled to additional financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. 

Depending on the point of contention, evidence could be straightforward and easy to collect, or very difficult. If a will was signed incorrectly, the evidence may be easy to provide, as the challenger could prove that the named witnesses were not present. However, given the testator will have already died, it may be difficult to prove that they were coerced into writing the will. In either of these cases, we recommend seeking professional advice from a legal expert.

When Can I Challenge a Will?

If you intend to challenge a will, doing so with the correct timing is an essential factor to ensure you have grounds for contesting it and are able to do so. Understanding the different stages of the wills process can help you determine when it's appropriate or possible to raise a dispute.

Before Probate

It's generally easier to contest a will before the probate process begins. At this stage, you may be able to negotiate with other interested parties or beneficiaries to resolve issues without going to court. If you suspect that the will may be invalid for any reason, such as undue influence or lack of capacity, this is the best time to raise those concerns.

During Probate

Once a Grant of Probate has been issued, challenging a will becomes more complicated - but it's not impossible. Sometimes, this will be your first opportunity to challenge the will - once a Grant of Probate has been issued, the will becomes a public document and you can apply for a copy. Before this, it is private and no one but the exectors has any right to access it. You typically need strong grounds for contesting and evidence to show why the will should be invalidated or modified. You may also have to deal with additional legal hurdles, such as court fees and the potential for complex litigation.

After Probate

Contesting a will after the Grant of Probate and estate assets have been distributed is quite difficult and often more expensive. However, it can still be done under certain circumstances, such as if newly discovered evidence proves the will is fraudulent. You should note that the window for contesting after probate varies but is generally quite limited, given that assets may have been passed out to the beneficiaries, so swift action is advisable.

Time Limitations

It is vital to be aware of any time limits for contesting a will or seeking provision from an estate. For instance, claims under the Inheritance (Provision for Family and Dependants) Act 1975 must generally be made within six months from the date of the Grant of Probate.

What Happens if I Successfully Challenge a Will?

If your challenge is accepted by the court and you are successful, the court will determine whether a previous will is valid or if the estate will proceed as an intestacy (i.e. as though there were no will at all). If you are seeking financial provision from the estate, the court will determine if and how much you are entitled to from the estate. To bring a claim of this nature, you should seek the advice of a contentious probate solicitor.