rolling dice and weighing up the risks of contesting a will

Contesting a will – what are the risks?

You may feel aggrieved by your inheritance, or feel that your loved one’s will should not stand – but what are the risks of contesting a will?

Your loved one has died, and taking legal action may be the last thing you want to think about, but if you feel that the will doesn’t reflect the true intentions of the deceased, or that you will struggle financially in the future as the result of the way the estate is to be divided, this is a step you may have to take. Many people look at the likely positive outcome that may come from contesting a will, but taking this kind of legal action does have its risks.

  1. You are not close enough to ‘have an interest’ in the estate

The law makes it clear that only people who have an interest in the estate can challenge a will. And until recently, this was thought to be people who would benefit under the intestacy rules, had the deceased died without leaving a valid will. As we recently reported, the case of Randall v Randall suggests that there may be scope for widening the group of people who can bring a challenge to the validity of a will.

  1. Not enough evidence to succeed

Challenging the validity of a will is quite a hard case to put together. In most cases, provided the will is signed and witnessed, there is a presumption that the will is valid. Coupled with this, the person who knows best what he or she was thinking when they made the will, who can give evidence about any pressure they were subjected to at the time the will was made is, to put it plainly, no longer with us. If you are seeking to challenge a will, you will need to construct a case using evidence that might be available: documents and witness statements from people who are prepared to support your claim. Although there is no time limit preventing you from bringing a claim, the longer you leave it, the harder it will be to track down this evidence.

  1. You may end up in a worse position than if the will stands

Before you contest a will, it makes sense to work out what the conclusions will be if you succeed. If you are challenging the validity of a will, and successfully persuade the court that the will should be set aside, how will the estate be divided up? Is there an earlier, valid, will that can cover the estate? Or will the intestacy rules apply? You need to consider carefully what the consequences of your challenge will be – you could end up worse off!

  1. Expensive legal fees

As with any legal action, bringing a claim disputing the validity of a will can be expensive, involving solicitors’ costs and court fees. There is no provision for Community Legal Service funding (what used to be known as legal aid), and many insurance policies which cover legal fees exclude these kinds of claim. If this is the case, you will be looking at funding your claim yourself. An alternative is to enter into a ‘no win no fee’ arrangement with your solicitor. These arrangements mean that you will only pay legal costs if you win your claim. Further, those costs can, in most cases, be recovered from the other side, making this a good option if you are considering contesting a will.

  1. Paying the other side’s costs

If you lose your case, you may end up having to pay the costs of the other side. If you bring a claim that is ‘mischievous’ or in circumstances in which you don’t have good evidence to support your claim, you may end up facing a large legal bill – a situation recently highlighted in the case of Elliot v Simmonds. If you are thinking about challenging a will, it’s always worth taking legal advice from a specialist firm of solicitors about the strength of your claim and the potential costs consequences of taking legal action.

There are lots of factors, and risks, that need to be weighed up before embarking on legal proceedings to contest a will, and it’s undoubtedly a stressful step to take. We can discuss how you will fund your claim, and guide you through the legal maze to help you identify whether you have a good case. We’ll also talk you through what will be involved and the evidence that will be needed to secure a good outcome. Give us a call on 020 3322 5103 to find out how we can help you.