How easy is it to contest a will successfully?

If you’re considering legal action to contest a will, the chances are you will be trying to work out which firm of solicitors to use to represent you. And no doubt, one of the big questions you want answered is how easy is it to contest a will – and win? It’s a worthwhile question to ask. Legal action of any kind can be stressful and exhausting; it can also be expensive. Legal action to contest a will is no different – so just how easy is it to successfully contest a will?

‘Unfairness’ doesn’t come into it

If it were possible to overturn a will simply by showing that it was ‘unfair’, then the answer to the question “How easy is it to contest a will successfully?” would be “Very easy”. Many people feel that they have been treated unfairly or unjustly by a loved one in a will – but this is not sufficient to contest the will successfully. As the Supreme Court has recently confirmed in the case of Ilott v Blue Cross, English law upholds the principle of ‘testamentary freedom’ meaning that people are free to leave their property as they wish, however unfair the result of that may be.

Leaving aside ‘unfairness’ as the grounds for contesting a will, you must therefore decide whether the challenge is based on an argument that the will is invalid (and so an earlier will, or the intestacy rules apply), or that the will itself is valid, but you should have received ‘a bigger share’ or the estate.

Evidence to contest a will

As with any legal dispute, the strength of your claim in respect of a will depends on the evidence. You must prove that the will is invalid for a legally acceptable reason – for example because the person making the will, the Testator, did not have the capacity to make the will, or because he or she had been subjected to undue influence. And here is one of the first difficulties in overturning a will: there is often very little evidence to show that anything untoward has happened. If there is evidence, it is often very old – and the person who would be in the best position to explain the will – the Testator – is no longer around to explain.

Evidence such as medical records are important if you are claiming that the Testator did not have testamentary capacity to make the will; but medical notes are prepared in relation to medical treatment, and not with a view to future legal action. It’s often the case that medical records don’t provide a complete answer for the purposes of a will dispute.

If you feel that undue influence has been brought to bear on your relation resulting in the will being drawn up in a particular way, it can be even more difficult to contest the will. There is unlikely to be any concrete evidence, and for a claim to succeed, the court must be satisfied that the will could only have been created in such a way as the result of undue influence.

Alternatively, if you are not challenging the validity of the will but the way an estate has been shared out, in a claim under the Inheritance Act, you must show that you have a financial need and depending on the nature of your claim that you were in some way dependent upon the Testator, that he owed you a legal obligation as his spouse or alternatively that even though you are his adult child, he owed you a special moral obligation (for instance because of your ill health, dependency or where there is a situation of historical abuse).

A question of cost

Even assuming there is sufficient evidence to contest a will, you must also consider the costs that a legal action will incur. We offer a ‘no win no fee’ service in almost all will dispute actions that we handle for clients – this limits your liability if your case gets as far as the courts and you do not win your case; if you do win, you will need to pay the legal costs. The losing party may be ordered to pay these, but it may be that the costs all but wipe out the financial value of your victory.

We very much favour using dispute resolution – mediation for example – as a means of resolving will disputes without going to court. Mediation is a quicker, less costly way to resolve a will dispute, and can often result in an outcome which is more suitable than an order of the court. There may still be costs to pay.

You should also consider the emotional cost of challenging a will. Legal action can be all consuming, especially in such a highly-charged scenario as a will dispute. Even if, on the facts, and with the evidence you have, the case is likely to be successful, you may still find the emotional cost of the action is high.

Take a realistic view

You may think it surprising that as will dispute specialists, we are setting out some of the difficulties that people face when they are looking to contest a will. Of course, each case is different, and we look at each case individually. However, we believe that it is best to have all the facts out in the open at the start – or even before the start – so you know what you are facing. It can be an uphill battle to prove that a will is invalid, or that the estate should be divided up differently, and even in winning, you may not end up in any better position.

On the other hand, we take care to advise our clients and prospective clients honestly as to the strength of their claim, and the likelihood of success. As a result, we succeed in most of the claims that we take on.

If you’d like to talk more about the will dispute you are considering, we’d be glad to listen. We offer a free claim assessment, so get in touch!