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Will Disputes form a large part of Contested Probate work. As a team, we advise clients on their position if they believe that a Will is incorrect or invalid in any way, and on the mechanisms available to them to bring a claim against the validity of a Will if they have realistic and reasonable grounds to believe that the Will is invalid.
We will advise on their position and whether they are eligible to pursue a claim against the Will. It is also important to consider any earlier Will before advising a client to pursue any claim as, if an earlier Will is in similar form to the later Will; or if there is no earlier Will, consideration needs to be given as to whether there is any benefit to the claimant in pursuing a claim. For instance, if there is no earlier Will and a later Will is proved to be invalid, the Intestacy Rules will follow which would only benefit family and not friends or step relations, however much they think it should.
There are various grounds to consider if you believe a Will is invalid, as follows:
• Lack of testamentary capacity
• Lack of knowledge and approval
• Undue influence
• Fraud
Consideration should also be given as to whether the Will is the latest Will executed by the deceased.
Contesting a Will is a complex legal process that can be time-consuming and stressful. If you believe you have grounds to contest a will, you should consult with a solicitor as soon as possible.
Although there is no specific timescale for bringing a claim against the validity of a Will, it is best to deal with this as quickly as possible as it gets more difficult as time passes. A challenge is often best brought before there has been a Grant of Probate obtained, but it can be pursued even after the Grant has issued. Sometimes the use of caveat is advisable (see more below) if you have concerns that need investigating.
The process typically involves:
1. Gathering evidence – to include a copy of the Will file prepared by the Will drafter, relevant documents and witness evidence to support your claim.
2. Filing a caveat - a legal notice that prevents the issue of a grant of probate, allowing you to make the necessary investigations before you bring a formal challenge against the Will.
3. Mediation or other Alternative Dispute Resolution - attempting to resolve the dispute through mediation or other alternative dispute resolution methods. If these fail, the case may proceed to court.
A caveat is a legal notice filed with the Probate Registry to prevent the issue of a grant of probate for a deceased person's estate. It essentially places a hold on the administration of the estate, giving the individual who lodged the caveat time to investigate whether to pursue a challenge the validity of the Will.
Lodging a caveat involves paying a fee.
The process to lodge a caveat is :-
1. Obtain and complete Caveat Form - obtain a caveat form from the Probate Registry or download it online.
2. File the Caveat - submit the completed form to the Probate Registry along with the required fee.
Once an application for a Grant of Probate is issued at the Land Registry, the potential executors will be advised that there is a caveat in place. They would then be expected to liaise with the caveator to see if they can move matters forward and agree acceptable terms to get the caveat withdrawn.
The executors can proceed to enter a Warning against the caveat which would need to be sealed by the Probate Registry and served on the Caveator. The Caveator would then have 14 days within which to enter an Appearance, failing which the Caveat would be removed and the application for a Grant of Probate can proceed.
Caveats are a useful tool at the start of any claim against the validity of a Will, but they have to be used wisely and if not withdrawn, leading to Warnings and an Appearance, costs can be incurred and legal advice should be sought before costs become an issue.
Contesting a Will can be expensive. You will need to pay legal fees, court fees, and expert witness fees.
You may also need to instruct a Barrister (Counsel) to provide advice and deal with any court hearings. If you are successful in your claim, you may be able to recover some or all of these costs from the estate.
However, these costs can be high and consideration should be given to the anticipated value of the estate before court proceedings are issued.
There are several ways to fund a contested will claim, including:
• Private funding
• Legal aid: Not generally available for this type of claim and not used within our team.
• Conditional fee agreement (CFA) – where your solicitor will only charge you a fee if you win your case. These are not generally used in Will validity cases.
• Deferred fee - your solicitor may agree to defer payment of your legal fees until after the case is resolved.
A claim against the validity of a Will is brought against the executor(s). The executors should inform any beneficiaries under the Will about the potential claim and it is likely that they may be joined as defendants in the claim going forward. The executor(s) must act in the interests of the estate and the beneficiaries and provide information to assist with the claim. They should agree not to continue to distribute the estate until the claim is dealt with. They will be bound by any agreement reached in relation to whether the Will is valid or not, or any settlement agreed between the parties.
Sometimes, the executors and also beneficiaries and in this case there can be a conflict in their position and legal advice should be sought to protect both positions.
It is generally more difficult to contest a will after probate has been granted. However, there may be exceptions in certain circumstances, such as if there is new evidence that was not available at the time of probate.
Contesting a will is risky. If you lose the case, you may be ordered to pay the legal costs of the other side, which can be substantial. Additionally, contesting a Will can be emotionally draining and time-consuming.
The burden of proof in a Will contest lies with the person challenging the Will. This means that you must prove your case on a balance of probabilities. This means that the court must be more likely than not to believe your version of events.
You will need compelling evidence such as :-
• Medical records - to demonstrate that the deceased lacked mental capacity at the time the will was made.
• Evidence – often, a statement from the person who drafted the Will, together with relevant documentation from their file; particularly contemporaneous attendance notes of the discussions had with the testator at the time the Will instructions were given.
• Witness statements - statements from individuals who witnessed the deceased making the will or who observed their behaviour around the time the will was made.
• Financial records – may demonstrate that the deceased was financially vulnerable or under undue influence.
• Letters, texts or emails - between the deceased and others can provide clues about their intentions.
Undue influence occurs when a person exerts excessive pressure or control over another person, causing them to make a decision that is not in their best interests. In the context of a will, undue influence can be a valid ground for contesting the will.
To prove undue influence, you must generally establish the following elements:
• A relationship of trust and confidence - there must have been a relationship between the deceased and the alleged influencer characterised by trust and reliance. This could be a relationship between a parent and child, a spouse, or a caregiver and the person they care for.
• Suspicious circumstances - evidence could include the deceased being isolated from friends and family, who drafted the will, the state of mind or health of the deceased or the deceased's previously expressed intentions.
• A causal link - you must prove that the undue influence caused the deceased to make the will. This can be difficult to do, as it requires demonstrating that the deceased would have made a different will if they had not been influenced.
Get in touch
If you would like to speak with a member of the team you can contact us on:
Partner & Joint Head of Contested Probate
