Contesting a Will : How Much does it cost?
It is very difficult to generalise on the cost of contesting the will, as much often depends upon the type of the dispute, the number of parties involved and the availability of evidence and quite often the availability of the parties to negotiate or compromise.
In all cases, the starting point above all else is to determine whether you actually have a case to contest a will.
Typically, we find that will disputes fall into the following categories :-
Is the Will Valid ?
We regularly encounter problems with will’s arising how they might have been witnessed incorrectly, signed wrong, not containing the correct attestation clause ( this covers the witnesses signing ) or wills destroyed or forged. Cases such as this will involve detailed scrutiny of the solicitors or will drafters file, together with gathering evidence from the witnesses.
Claims for Financial Provision
Cases are very common and arise when the deceased has left out of a will a family member who was financially reliant upon the deceased or the deceased should have left financial provision for. Of all will disputes this type of claim is the most common.
Did the Deceased Have the Capacity to Make a Will ?
We will frequently obtain medical records and review whether the deceased actually had the capacity to make a will. The testator ( the person making the will ) must have the knowledge that he/she is making the will.
Broken promises by the Deceased
These types of claim arise when the deceased may have made a promise or an assurance which was relied upon a disappointed beneficiary often resulting a detriment. eg. working for a very low wage in return for a share in a property
This arises when undue influence through a variety of means is exerted on the deceased to alter or amend their will
Lost original wills
We regularly see many cases where the executor or solicitor has lost an original will. Given that the original is required for the application in the probate registry this can cause many problems, as the consent of those prejudiced by the copy will are required.
How are cases funded ?
There are lots of ways to fund a case which maybe summarise as follows :-
No Win No Fee Damaged Based Agreement
A new form of agreement, which acts in the same way as a No Win No Fee agreement but with our costs being paid out of any damages recovered. Typically, the percentage can be anything between 20-30%.
No win No fee Agreement
This means that our costs – if successful – are paid by your opponent or out of the estate, only if you win your case. You pay nothing if you lose. Insurance costs maybe payable though, whilst the solicitor may agree what is known as a success fee which is typically a percentage of the solicitors costs. This is paid in recognition of the case being successful.
Deferred fee basis
This means that our costs are deferred until the end of the case.
Agreed in advance a fixed fee fee for handling the case.
In a contested probate case does the estate always have to pay the costs?
The general rule in law is that costs follow the event, which means that if you succeed with your case your costs are paid by the opponent or from the estate.
In all cases it is important to appreciate that costs are always subject to the discretion of the Court, which means that if the case is subject to Court proceedings particularly in cases involving family disputes, the Court will often want to consider very carefully the conduct of all the parties involved before making a decision on costs. For example:-
- Did the Deceased cause the dispute by acting unreasonably ? If so, this will be a factor used to determine the payment of costs from the estate.
- Has one of the parties acted unreasonably or unfairly ? or has a part caused the delay of the case, a Judge may regard such conduct as being unreasonable and order that they have caused the dispute and as such must bear the costs of the litigation
Unsure as to whether you have a case ? call us now
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