Contesting A Will The Correct Way
Increasing numbers of people are disputing wills. In 2023 there were 122 contested probate cases that went to trial, up from 116 cases in 2022, according to the Ministry of Justice.
But to succeed in your legal challenge, you must be methodical and well organised in your approach. There are pitfalls to overcome. Getting expert legal advice early on will improve your chances of success.
Book A Call With A Contested Wills Solicitor
It will help you to avoid pitfalls such as these…
Lack Of Legal Grounds For Disputing The Will
Grounds for contesting a will typically include:
- Lack of testamentary capacity – the testator (the person who made the will) must have been of sound mind when the will was drafted and signed.
- Undue influence – has someone exerted improper pressure on the testator to change their will?
- Lack of knowledge and approval – the person making the will did not know and approve of its contents (for example, if they were blind and were not read the contents of the will).
- Failure to meet legal formalities – the will must be properly signed and witnessed according to the Wills Act 1837. Get expert advice on this from our specialist wills and probate solicitors.
- Fraud or forgery – allegations that the will has been tampered with or forged.
Pitfall: Contesting a will without strong evidence for any of these grounds can lead to a failed claim.
How To Avoid It: Ensure you have solid evidence to support your challenge. This can include medical records (for testamentary capacity), witness statements, or forensic evidence in cases of alleged forgery. Submit a caveat at the Probate registry to stop the administration.
Missing The Time Limit
There are strict time limits for taking action. For example:
- A claim under the Inheritance (Provision for Family and Dependants) Act 1975 must usually be brought within six months of the grant of probate.
- Other claims (such as those based on undue influence or lack of capacity) should be brought as soon as possible, although there is no specific statutory limit.
- Claims are best brought before the estate is administered to ensure you can recover the deceased’s assets.
Pitfall: If you miss the time limits, you may be barred from bringing a claim.
How To Avoid It: Act quickly. Once probate is granted, it is crucial to seek legal advice immediately and file any claims in time.
Insufficient Evidence For Litigation
Even if there are valid grounds to contest a will, a lack of compelling evidence can make it difficult to succeed in court.
Pitfall: Without concrete evidence to back your claim, the court may find the will valid.
How To Avoid It: Gather as much supporting documentation and witness testimony as possible. For example, if you are alleging lack of capacity, you might need expert medical opinions or witness testimony from those who observed the testator.
Financial (And Emotional) Cost Of Bringing Litigation
Contesting a will can be expensive. If your case is unsuccessful, you might be ordered to pay the other side’s legal costs.
Pitfall: The financial burden and stress of a prolonged legal dispute can outweigh the benefits.
How To Avoid It: Assess the likelihood of success with a solicitor before proceeding. Consider mediation; this avoids the need to go to court, so it can lead to a quicker and less expensive resolution.
Mediation And Settlements
It is usually quicker and more cost-effective to resolve disputes outside court whenever possible. The courts support this approach because they have a backlog of cases and are under a duty to deal with them justly and at proportionate cost.
You could also now be ordered by the court to attend mediation following the Court of Appeal decision of James Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416.
Pitfall: Refusing reasonable attempts to mediate or settle could harm your case – or lead to an adverse costs order.
How To Avoid It: Be open to alternative dispute resolution (ADR) such as mediation. It can save time and money, and often leads to outcomes that both parties can accept.
How To Successfully Contest A Will
Seek legal advice early. Consult a specialist solicitor as soon as you suspect there may be grounds to contest a will. They will assess your situation and advise on the appropriate grounds for challenge.
Obtain the will file. The solicitor who drafted the will should have a file containing notes about the testator’s state of mind, who was present, and whether there were any unusual circumstances. This can be crucial evidence in your case.
Collect evidence early. The sooner you start gathering evidence, the better. This could include:
- medical records (if mental capacity is in question)
- witness statements from family members, carers or friends who knew the testator
- documentation showing the testator’s prior intentions (if these differ from the final will).
Act within time limits. Be mindful of the time limits for bringing a claim. Acting quickly will keep your options open.
Consider what contesting the will achieves. If a will is proved invalid, then it is possible that a previous will comes into effect as a result. Therefore, it may not be worth contesting a will if the previous will has similar or more detrimental terms.
Consider alternative options. If contesting the will seems too risky or costly, you might explore whether you can make a claim under the Inheritance Act 1975 for reasonable financial provision, as outlined below...
What If The Will Is Valid And Seemingly Uncontestable?
Even if the will is valid, you may be able to still claim reasonable financial provision from the estate of the deceased person under the Inheritance Act 1975. You may be able make this claim if you:
- are a family member
- lived with the deceased as if you were a married couple
- were someone who was financially maintained by the deceased before their death.
So even if the will initially appears to be indisputable, you may still be able to claim a share of the estate.
It is therefore well worth contacting a litigation solicitor who has experience in contesting wills.
Assess your case strength with the solicitor and gather robust evidence such as bank statements and witness statements.
Get Expert Legal Advice On Contesting Or Defending A Will
Contact Coles Miller Associate Solicitor Patrick Herklots for further information. He deals with all forms of civil and commercial litigation including contentious trust and probate (disputed wills and Inheritance Act claims).
Coles Miller is one of Dorset’s largest law firms. We have six offices in Poole, Fleetsbridge, Bournemouth, Christchurch, Broadstone and Wimborne. A number of our departments – including Disputes and Litigation – help clients all over the country.
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