we strip back a will dispute to its bare bones and look at the anatomy of a will dispute

The Anatomy of a Will Dispute

Challenging a will can take two different forms – either a challenge to the validity of the will itself, or a claim for ‘reasonable financial provision’ under the Inheritance Act (essentially a claim that you should have been left more by the person who has died). You may not know yourself when you contact a solicitor which type of claim you will be bringing. However, although there will be differences, there are also enough broad similarities in practical terms to give you an idea, in general terms, of ‘the anatomy of a will dispute’.

Initial Steps

Even if you are already concerned about the contents of a will or the validity of a will, under English Law, you can’t take any action until the person who made the will has passed away. Once you become aware of the contents of the will, and feel that it needs to be challenged, your first steps are to take action to make sure that probate cannot be granted without you being informed. If you think the will itself is invalid, you need to enter a caveat on the Probate Register.

If you do not dispute the validity of the will, but feel that you should have received more under the will, you can enter what is called a ‘standing search’ which means you will be notified when Probate has been granted. This starts the 6 month time limit for bringing a claim under the Inheritance Act.

If you are not sure what you should be claiming, you should take legal advice to make sure you protect your position in the right way – either with a caveat or a standing search.

Taking Legal Advice

If you have not already done so (you don’t need a solicitor to enter a caveat), you should take legal advice at an early opportunity so that you can understand what you will need to prove your claim. It’s important to use a solicitor who is experienced in will disputes – they will be able to give you practical advice about the strength of your claim, and to talk through the issues and possible outcomes of legal action.

At this early stage, your solicitor will talk to you about legal costs and how the claim will be funded. In many cases, you will be able to enter into a ‘no win no fee’ agreement, such as the arrangements we offer our clients.

Kicking off the claim

Once you have spoken to a solicitor about your claim, established the type of case you are going to bring, and instructed the solicitor to act for you, you may find that things go quiet for a while. Be assured that this doesn’t mean nothing is happening!

Your solicitor will be taking steps to contact solicitors acting for the people who you will be bringing the claim against. This could be the executors of the will, other relatives, or perhaps another unrelated beneficiary under the will in question, such as a charity.

As a solicitor regularly instructed to act in will disputes, there are various actions I will take depending on the type of claim. I will need a copy of the will in question, and any previous wills. I will also contact any solicitors who were involved in drawing up the disputed will and requesting the ‘will file’. I may also apply for the medical records and social services records of the Testator if a claim is to challenge the validity of the will. The facts of each case will determine the kind of evidence I will be looking for. In will validity claims, there may be a number of reasons to argue that the will is invalid; equally, it may be a case where we could argue both will validity and a claim under the Inheritance Act.

Once I have received all these files and documents, I will kick off the claim fully with a letter of claim detailing the basis of your claim and the supporting evidence, and take it from there.

Negotiation and Mediation

Essentially, once a full letter of claim has been sent off to ‘the other side’ in the dispute, your solicitor will be working to gather as much additional evidence he or she can find to support your claim. This could include witness statements from doctors who were treating the testator at the time he or she made the will. It could include evidence from their friends or relations or others involved in the Testator’s care. Your solicitor may ask for advice from a barrister (counsel), a second opinion, about the case. Unlike your solicitor who will have been living and breathing your case from day one, a barrister can often offer a different perspective, and will be able to advise on the strength of your claim. The advantage of using a barrister is that he or she will have extensive experience about how the court is likely to view your claim.

While all this is going on, it is also very likely that your solicitor will discuss the possibility of negotiating a settlement to resolve the claim, or of using a mediator to see if agreement can be reached. It may be that from an early point, the possibility of settling will be placed on the table.

There are a number of benefits of reaching a settlement rather than pursuing the matter to a full court hearing, not least because it keeps the costs down, and puts you in control of the outcome, rather than relying on the decision of a judge. Even if solicitors cannot negotiate a settlement between themselves, a mediation, which takes place over the course of one day, will still prove a more cost effective than proceeding to a full hearing in court.

A Day in Court

A great many will disputes don’t get as far as court. In many cases, the parties can reach an agreement through negotiation or using dispute resolution such as a mediation. However, there will always be some cases where the parties involved simply cannot reach mutually acceptable common ground, so your solicitor will be involved in preparing for a hearing in court. At this stage, if we haven’t already done so, we will need to get a barrister on board.

You are unlikely to get a decision on the day of the court hearing, and may well have to wait. There may also be additional hearings relating to costs issues.

Of course, every case is different, and so there will always be variations, depending on the type of claim, the evidence, and the strength of the claim you are looking to bring. At Will Claim, we take great care to make sure you get the best advice whatever your claim and circumstances, with a view to reaching a beneficial outcome. If you would like to talk to us about a possible will dispute, please get in  touch!