We are often contacted by relatives, who have discovered that they have been left out of a will, if so how do you contest a will ?
The starting point is immediately to seek help, from a solicitor experienced in contested probate, for the following reasons :-
- there are very strict time limits – for example under the Inheritance Act you have just 6 months from the date of probate to issue proceedings
- it is a highly specialist area of law. Often clients may contact us believing that they have no case only to find they were simply unaware they could claim under a different area of law
- time is of the essence. It is important to stop assets been spent and dissipated from the estate, whilst it also gives you time to enter a Caveat which stops probate
The key stages of contesting a will are as follows :-
- establishing the grounds to contest a will
- submitting a letter of claim through a solicitor
- the negotiation / mediation
- Court Proceedings
The Grounds to Contest a Will
There are numerous ways in which a will maybe contested, the key grounds are as follows :-
- The will itself – is the will valid and legal ?
- Did the testator ( the person making the will ) lack the testamentary capacity to make a will ?
- Was Undue Influence applied when the will was made ?
- Is the will genuine ? or is it a forgery ?
- Is the will sufficiently clear as to its meaning ?
- Did testator undertstand the terms of the will ( known as knowledge of approval )
- Did the will leave sufficient financial provision for someone who was dependant upon the deceased ?
- Did the deceased promise something ? and you relied upon that promise ?
Submitting Your Claim
Once the grounds of submitting your claim have been establlished, the evidence must be gathered in support of your claim. Whilst these investigations are undertaken, it is important that the estate assets are preserved by the issue of what is called a Caveat. This lasts for 6 months and prevents the Probate Registry issuing any grant of probate.
When undertaking evidence, the starting point is always the will itself. Sometimes there is a reluctance of a will in dispute to be disclosed but the issue of a Caveat is sufficient is obtain disclosure of the will otherwise the Executor simply cannot administer the estate. Once obtained the evidence gathering begins. The first stage is a thorough investigation as to the background circumstances of the will itself. Such evidence is obtained by submitting what is known as larke-v-nugus letter sent to the solicitors who drafted the will, this would seek various information relating to how the will was actually executed :-
- who provided the instructions ?
- who was present ?
- how were the instructions of the deceased expressed ?
- did the will differ from previous wills ?
- what checks did the solicitor undertake to ensure she had the capacity ?
- what evidence is there from the witnesses to the will ?
We would also obtain the medical records as well, when there are issues relating to the capacity of the Deceased. Often in cases of dementia or alzheimers, GP’s will have undertaken memory tests such as a Mini Mental Examination which is often scored out of 30. A low score can be useful in establising a lack of capacity if the testator has undertaken a test close to or before making the will.
Very often statements will be obtained from family or friends as evidence from those that knew a Testator.
The Letter of Claim
Once all the evidence is gathered a formal letter of claim will then be submitted. This will outline the legal basis of the claim, and the remedy sought. Protocols provide that a reply should be submitted within an agreed time typically 21 days. Typically, a peiod of negogiation will arise whereby the parties will attempt to negotiate a settlement. This may result in the following :-
- a compromise being reached as regards the claim eg. the will is admitted to probate but with a some of money being paid to the claimant
- there being no compromise reached
- mediation takes place or court proceedings being issued
Mediation
Mediation involves the parties seeking to resolve their dispute through an informal process called mediation. The mediator will be entirely independent and neutral, and will seek to assist the parties in ngeotiating a settlement that both sides find agreeable. The key benefits to meditiation being that it is :-
- entirely confidential
- less formal than court proceedings
- focusing on the parties seeking a compromise or settlement
- far less costly than court proceedings
- highly effective – typically over 90% of mediations are successful
Court proceedings
If the parties through correspondence or mediation have failed to resolve the dispute then proceedings is always the last option. It is still a very rare occurance though with certainly less 1% of all cases resulting in Court proceedings, simply because of the time and significant expense. Those cases that do go to Court typically involve very substantial estates in value, or significant factual disputes or unusual areas of law.
Do You Need Help With a Will Issue or Dispute ?
We are one of the very few firms to specialise in contested probate cases, if you are unhappy with a will please feel free to contact Tim Murden on 01482 429985 or at tim.murden@tmsolicitors.co.uk
Our free Download Guide On Contesting a Will
You can find out more on how to contest a will by downloading our free guide by clicking here
