How to contest a Will – a Noddy’s guide (no disrespect to Noddy!!)
In general your will dispute centres on either a claim against the validity of the Will or a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. The latter is a claim against the estate, not a Will contest claim per se whereas a claim against the validity of a Will does involve in our view a true contest about the Will (as opposed to the estate). We are then dealing with a will validity claim only below. Anyway enough semantics, here are some dos and don’ts.
DON’T…proceed with your claim unless you are certain that if the will is declared invalid you will either inherit under the rules of intestacy (as the nearest living relative or one of them) or if applicable by earlier valid Will.
DON’T….proceed with your claim unless you are satisfied you can make out a case that:
The person making the Will (called the “testator”) didn’t or could not have understood/known the Will contents and/or what he or she was doing at the time;
He or she was subject to pressure to make the Will a certain way (called “undue influence”);
That the Will was forged or otherwise not properly executed (by the testator signing in front of two witnesses who each signed in front of each other).
DO… enter a Caveat to stop the Grant of Probate but immediately afterwards please also take legal advice.
DO…investigate the formation of the Will and ask for the Solicitors will files….you are entitled to do so by a case called Larke v Nugus.
DO…(if you consider they might be useful to your case) apply for the deceased’s medical records (you may have a right to them independently of the Will Executor who is sometimes required to consent as well under the Access to Health Records Act at section 3(1)(f)).
DO….draft a letter of claim and send it to the Will Executor setting out why you consider the Will is invalid asking for the disclosure of papers within their power and control to include all earlier Wills and Codicils and the Solicitors’ will file. DON’T ….make up any of the facts you say support your claim. In general the more honest you are the more credible will be your case.
DO…AND WE WOULD SAY THIS (!!) consult with us or instruct us to help you. In general, we can act on a no win no fee basis in every case.