Contesting Wills: Five Things to Consider
Contesting wills is never something to be undertaken lightly. Consider these 5 issues before you decide what to do – and consider taking professional legal advice about your situation.
Will you challenge the validity of the will, or just ask for reasonable financial provision?
Challenging the validity of a will can be done on the following grounds:
- When the will does not meet the requirements set out in the Wills Act 1837, that is, validly signed and witnessed
- When the testator (the deceased person who wrote the will) did not know and approve of the provisions in their will
- When the testator was under “undue influence or coercion” while making their will
- When the testator did not have “mental capacity” when making their will
In one of the above situations, it is possible to contest the validity of the will itself.
Alternatively, a beneficiary can make a claim against a will under the Inheritance (Provision for Family and Dependants) Act 1975 without bringing the validity of the will into question. Such a claim would be made on the basis that the will does not leave reasonable financial provision for family members, children, or other people who were financially dependant on the deceased person.
What evidence do you have?
When contesting a will on the basis that the testator did not have mental capacity to write the will, or that they made the will while under undue influence, it might be necessary to provide evidence to support a claim. Examples of evidence include:
- Witness statements: it would be useful to have witness statements from individuals who knew the testator or were present when the will was made to support an argument that it was done under undue influence or without mental capacity
- Diaries or letters: other documents such as diaries or letters might serve as evidence of the testator’s circumstances or state of mind when the will was made can be helpful when contesting wills
- Medical notes: If a claim is based on lack of mental capacity, it would be useful to have medical notes to explain any medical conditions suffered by the testator that could have influenced their mental capacity when the will was made.
Have you considered mediation to solve the will dispute?
Mediation is a way of finding a compromise to settle a will dispute without taking the issue to Court. Unlike in other legal disputes, mediation is not required for contentious probate matters. However, this approach can be beneficial. Some key benefits of mediation include:
- An opportunity to repair family relationships: will disputes can cause families to fall out and finding a solution or compromise through mediation might resolve these issues
- Costs: Mediation is less expensive than going to trial
- Time Efficiency: Going to court can take a lot of time, so mediation is a way to avoid a potentially lengthy and stressful experience when contesting wills
- Certainty: A court will rule in favour or one party or the other and it is impossible to know for sure what the outcome of a will dispute hearing will be before the hearing. Mediation leads to an agreed outcome and is therefore less uncertain than going to Court.
Contesting wills is a process that can be expensive, because of the need to pay for solicitors and barristers to prepare the case and represent you in court. Therefore, it might be appropriate to consider a no-win-no-fee arrangement. In this type of arrangement, you will not need to pay legal fees unless you win. This mitigates the risk of having to pay an expensive legal bill at the end of an unsuccessful will dispute, and prevents you from having to pay up-front. If a no-win-no-fee claim is successful, your legal fees will be paid out of the testator’s estate, or out of any money you claim as a result of the ruling.
How long does contesting wills take?
Under the Inheritance (Provision for Family and Dependants) Act 1975, claims have a six-month time limit, whereas claims against the validity of a will have no time limit. However, such cases can be more difficult to establish if the testator has long since passed away, because over time it becomes more difficult to gather evidence. Some will disputes take years to be fully resolved. It is also possible for will disputes to be appealed to higher courts and this will draw out the process further.
Mediation is an option that might speed up the process of resolving a contentious probate dispute because it is possible to negotiate and reach an agreed settlement without having to wait for court dates.