Will disputes

It can be a hugely emotional and challenging time when a close relative or friend dies. These difficult circumstances can be made all the more testing when, as is often the case, that person dies leaving no will (this is known as an “intestacy”), or they leave behind a will that arises suspicion, does not seem to reflect their true wishes, or is simply not as you would have anticipated.

If you find yourself in this situation, there are a number of potential routes and remedies that may be available to you. Although litigation can be a very effective means of resolving disputes, it is not always the case that you would need to go to Court, and with legal assistance these issues can often be resolved in an amicable and successful manner without recourse to formal proceedings.

We have extensive expertise in this area, and we will give you honest, practical advice about the merits of your case and how best to go about securing the outcome you want.

In addition, we work closely with our specialist Wills, Estate & Tax Planning team, and we advise on preventative measures that can be taken by clients to try to avoid such disputes.

What kind of will disputes can arise?

Disputes in relation to wills can arise for a variety of reasons:

• A will cannot be found
• You think the will you found is wrong
• You are not sure if the will is valid
• There are doubts about whether the person who made the will (testator) had the mental capacity to create such an important document
• There are doubts about whether the testator knew and approved the will
• There is a suspicion that others influenced the decisions of the person making the will
• There is a suspicion the will has been forged or planted after the testator’s death
• The will is unclear due to the will writer’s mistake or a clerical error.

Our expert will dispute lawyers can assist people in all of the above circumstances. We act for those wishing to contest a will and those wishing to prove that the will is valid (i.e. wishing to propound the will). We represent beneficiaries in disputes, and those who are named in the will as executors. We also act as independent administrators in cases where executors need to be removed and the estate administered by someone entirely separate from the beneficiaries.

When can you challenge a will?

A will may be challenged for a variety of reasons, for example there may be concerns as to its legal validity, whether a later will exists, the construction or interpretation of the will is unclear, or the terms of the will itself are defective.

While challenges to the legal validity of a will have no formal limitation period, claims are best pursued as soon as possible, and preferably before a grant of representation is made, as prospects can be severely reduced where distribution has already taken place.

Some claims carry very short deadlines (such as 6 months from the grant of representation) so it is best that specialist advice is taken. Alternative claims, such as those under the Inheritance (Provision for Family and Dependants) Act 1975 – which also have a 6 month deadline – may be pursued in conjunction.

How can you challenge a will?

Will challenges are generally pursued by application to the Chancery Division of the High Court, either to rule for or against a will’s validity, settle an issue relating to the interpretation of a will, or rectify a mistake contained in it.

Formal proceedings may be avoided where the relevant beneficiaries are in agreement, and not every application will be contentious (for example where there may be agreement, but the Court is required to consent on behalf of minors, unborn children or those lacking capacity).

What can I do if I suspect a will is invalid?

Steps should be taken to investigate the position as a matter of priority, and legal advice on possible claims sought. A copy of the will and any previous testamentary documents will need to be obtained, however this may be resisted. It is likely that formal steps will need to be taken at an early opportunity to intervene in the administration and prevent the estate from being exhausted before the claim is resolved.

How much does it cost to challenge a will?

Claims involving disputed wills are necessarily fact specific and the costs differ greatly, depending on the complexity and volume of documentation, as well as the availability and quality of evidence needed. In some cases, expert witnesses (e.g. on testamentary capacity or on handwriting) may be required. In general, it is best to view costs on a phase-by-phase basis and bear in mind that compromise may be possible at any stage.

Initial advice

Advice will need to be sought at an early stage alongside gathering evidence. For example, in the case of claims involving testamentary capacity, medical notes are likely to form crucial evidence and it will generally be necessary to obtain notes from any relevant will drafter or witnesses.

Pre-Action correspondence

Parties will then engage in the exchange of information (usually by letter of claim and response) to narrow down the issues in dispute. This will help shape the prospects of the claim and whether any consensual outcomes are likely to be possible.

ADR

Once the issues in dispute are appropriately narrowed down, the parties might agree to engage in alternative dispute resolution in an attempt to avoid the costs, stress and delay of formal court proceedings. Most cases settle in this manner, without the claim being heard by a court.

If that is not possible, or the specific claim requires the determination of the court, then an application or claim will need to be issued. The costs will include disbursements (expenses) such as court fees and potentially the instruction of a barrister at certain points in the court timetable, as well as the possible need for expert witnesses.

Costs

In the case of will disputes, costs are at the discretion of the court. The usual rule is that the loser pays a contribution towards the winner’s costs, however there are many factors which a court can take into account and circumstances can arise, or be engineered, to give rise to different cost consequences (for example the placing of a settlement offer in an appropriate format). Advice should be taken in each case.
In some cases, we may be prepared to share or take on the costs risk with you. We can also explore 3rd party litigation funding with you, and insurance against the possibility of having to meet an opponent’s costs if the case is lost.