Article by Alexa Payet, Partner at Bolt Burdon [1] and listed specialist in the Certainty Contentious Probate Hub & Area [2]
In an increasingly litigious society Will disputes are relatively common. At the core of these disputes often lie entrenched disagreements between family members, which can give rise to suspicion over the handling of a loved one’s affairs prior to their death.
Against this backdrop, it is not uncommon for disputes regarding the validity of a Will to arise post-death.
How can I challenge a Will?
Anyone can challenge the validity of a Will. If you have cause to believe that a Will is invalid then you can contest it by relying on one or more of the following grounds:
- The Will has not been properly executed.
- The person who made the Will (i.e. ‘the testator’) lacked mental capacity to make it.
- The testator lacked knowledge and approval of the contents of their Will.
- The testator was subject to undue influence.
- The Will is forged / fraudulent.
If you suspect that a Will is invalid then you should seek advice from a contentious probate solicitor. You can search for a suitably qualified specialist via the Certainty Contentious Probate Hub & Area. It is important that you instruct a specialist in contentious probate matters as this is a niche area of law and not all solicitors will have the requisite experience to deal with such matters.
Before you decide whether or not to challenge the validity of the Will it is important that you undertake some initial ‘fact finding’ investigations to establish whether it is in your best interests to proceed with a challenge.
Fact finding investigations
As Will disputes are expensive and often protracted, it is important that you take steps at the earliest opportunity to establish whether there is any benefit to you in proceeding with your challenge.
Key questions that should be asked include:
- Did the testator make a previous Will?
If the answer is yes:
- Were you named as a beneficiary of the previous Will?
If the answer is no there is no benefit to you in bringing a claim unless you have grounds to challenge the previous Will and you are a beneficiary under an earlier Will or (if there was no such earlier Will) you would be entitled to benefit on intestacy.
If the answer is yes then:
- What was your entitlement under the previous Will?
If your entitlement was less under the previous Will it wouldn’t be worth taking the challenge any further.
If your entitlement was more under the previous Will but you were due to receive only a small amount (e.g. a small cash gift) then it may not be in your best interests to proceed with a Will challenge as your costs could exceed the amount of your potential entitlement even if your challenge was successful. You might therefore wish to consider ‘teaming up’ with other potential beneficiaries to share the costs risk with them or, if the other potential beneficiaries stand to benefit considerably from a successful Will challenge, you might wish to let them proceed with the challenge without you to ensure that you are not exposed to any costs risk in the litigation.
In some cases it may be difficult to ascertain the benefit to you of challenging the Will as there may be limited information available regarding the value of the estate and thus the amount which may be available to you on a final distribution. This is especially the case where you are a residuary beneficiary (i.e. you are entitled to a share of what’s left in the estate after all liabilities (including tax), expenses and other gifts have been settled). You may therefore need to spend more time and money investigating these matters before you decide whether to bring a claim.
If the testator did not make any previous Wills then (in the event that your Will challenge is successful) they will be deemed to have died ‘intestate’ and the estate will be administered in accordance with the intestacy rules. The intestacy rules determine who inherits if a person dies without a Will. You should therefore seek advice about whether you would be entitled to receive any part of the estate on intestacy before proceeding with your claim.
If you do not take the above steps then you will expose yourself to considerable costs risks and you may derive little or no benefit from challenging the Will. This could put you in a worse position than if you had done nothing at all.
It is therefore vital that you take specialist advice and conduct a thorough Certainty Will Search at the earliest opportunity using the Certainty the National Will Register [3] to establish any previous Wills or whether a Will exists. A Certainty Will Search checks for Wills that have been registered on The National Will Register and for Wills that have not been registered.
Caveats
In order to protect your position during the initial ‘fact finding’ stage, you should enter a caveat against the estate to ensure that a grant of representation cannot be issued pending the determination of the dispute.
The Grant is important to the personal representatives of the estate as it is what enables them to administer the estate and to sell assets. It is important to prevent this if you suspect that the Will is invalid; otherwise there will be a risk that the estate could be disposed of before you commence a claim (which would make it more difficult (and costly) to recover any assets from the estate if your challenge is successful).
A caveat is a written notice that can be entered at the probate registry to prevent a grant being issued and is generally used if a person intends to dispute the validity of a Will or who should administer the estate. If an application for a grant is made after the caveat is lodged, you will be notified of the grant application and given the opportunity to object to the issue of the grant.
A caveat will remain effective for a period of 6 months and can be extended for a further 6 months within a month before it expires.
Setting out your case
An experienced contentious probate solicitor will be able to assist you with the fact finding stage of your case and, once you have sufficient information to enable you to set out your case in detail, your solicitor will be able to engage in correspondence with the other party and/or their lawyers on your behalf.
Setting out your claim carefully in correspondence and assessing the strengths and weaknesses of both parties’ positions are key steps in the overall strategy of your case. It is important that sufficient time and attention is given to this stage, that alternative dispute resolution (‘ADR’) (such as mediation) is considered, and that Court proceedings are issued as a last resort.
You should avoid being drawn in to emotive correspondence and making unhelpful, inflammatory allegations against the other party and should instead focus on the evidence (which is what the Court will be concerned with).
If you issue proceedings prematurely and/or fail to consider or respond to an invitation to mediate then you may be at risk on costs at the end of the matter (even if your claim is successful). Court proceedings are expensive, time consuming and stressful and there is no guarantee of success. They should not therefore be entered into lightly.
Court proceedings
If the matter cannot be resolved in correspondence or via ADR, then a claim will need to be issued at Court. Once Court proceedings are commenced the parties will be required to adhere to the Court’s timetable and the costs of both sides will increase significantly.
Although it can be tempting for clients to argue their case as a matter of principle, in reality this is a very expensive way to approach a case and it should therefore be avoided as far as possible.
Sadly, it is not uncommon for people to contest a Will out of spite, because they are unhappy with the terms. The incentive here seems to be to increase the costs of the beneficiaries so they receive nothing or very little from the estate. This approach is likely based on a misconception that the estate will pay the costs of the dispute. It is important to note that this isn’t the case and often the unsuccessful party to the dispute will be ordered to pay the costs personally (which can be as much as £100,000 per party).
It is therefore imperative that, if claims are raised or challenges are intimated, a specialist is appointed to assist you in bringing or defending the claim.
With assistance from your solicitor, you should continue to assess the strengths and weaknesses of your case (and that of your opponent) throughout the matter and in view of any additional evidence that comes to light as the case progresses. This approach will enable you to weigh up the pros and cons of continuing with the claim as well as to assist with settlement negotiations.