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HOW TO CONTEST A WILL – LESSONS IN CHALLENGING A WILL (PART 1)

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss why it can be difficult to challenge a Will even where there is no defence

Why is it sometimes difficult to challenge a Will even where there is no defence?

This was the position in Teresa Ann Coles v Heather Christine Reynolds and another 2020 EWHC 2151 (Ch) (https://www.bailii.org/ew/cases/EWHC/Ch/2020/2151.html). She brought a claim against the legal validity of her late mother’s Will dated 18 October 2011 which left the entirety of her mother’s remaining estate (she had already gifted 50% of her home – this was also an issue but subject to the outcome of the claim against the validity of the Will) to her sister. She claimed that her mother had been subjected to undue influence and that she cannot have known and approved of the contents of her Will. There was no Defence by her sister except a belated attempt to run one by way of an application to the trial Judge which was refused.

How is it possible not to win when there is no Defence?

In most civil claims where there is no defence the court rules allow one to enter Judgment – in other words to win! There is a difference in Will contest claims and disputes because of the courts overseeing and supervisory role in relation to Wills. In fact the court is central to any challenge concerning the legal validity of a Will (refer to our previous blog – https://www.willclaim.com/role-courts-will-dispute/). In consequence it is not possible to obtain Judgment or a “win” where no defence is entered to a contest, dispute or challenge the legal validity of a Will. The court must examine the evidence and papers in advance of any such ruling. The only difference between this and a normal trial is that the court is likely to limit its examination to the papers only.

There are court rules governing this process under “Civil Procedure Rule” 57. The rule in question can be found at https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part57#57.10. It says:

Failure to acknowledge service or to file a defence
57.10

(1) A default judgment cannot be obtained in a probate claim and rule 10.2 and Part 12 do not apply.
(2) If any of several defendants fails to acknowledge service the claimant may –
(a) after the time for acknowledging service has expired; and
(b) upon filing written evidence of service of the claim form and (if no particulars of claim were contained in or served with the claim form) the particulars of claim on that defendant;
proceed with the probate claim as if that defendant had acknowledged service.
(3) If no defendant acknowledges service or files a defence then, unless on the application of the claimant the court orders the claim to be discontinued, the claimant may, after the time for acknowledging service or for filing a defence (as the case may be) has expired, apply to the court for an order that the claim is to proceed to trial.
(4) When making an application under paragraph (3) the claimant must file written evidence of service of the claim form and (if no particulars of claim were contained in or served with the claim form) the particulars of claim on each of the defendants.
(5) Where the court makes an order under paragraph (3), it may direct that the claim be tried on written evidence.

This is what happened in Coles v Reynolds (above). Unfortunately, even though there was no defence to Ms Coles claim against the legal validity of her late mother’s last Will, she lost!

Excerpts from Teresa Ann Coles v Heather Christine Reynolds and another 2020 EWHC 2151 (Ch)

A reiteration of the role of the court (paragraph 12):

In Wharton v Bancroft [2011] EWHC 3250 (Ch), Norris J said:

“9. The task of the probate court is to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost.”

The importance of using Solicitors – in Coles v Reynolds the disputed Will was not only prepared by a Solicitor but the Solicitor in question also commissioned a report from the deceased’s GP which confirmed capacity (thus following the so-called “golden rule” – refer to our previous blog at https://www.willclaim.com/testamentary-capacity-golden-rule/). In consequence the court found that it could simply “presume” the deceased knew and approved the contents of her last Will (paragraph 107):

In these circumstances, I could simply rely on the presumption that arises from proof of testamentary capacity and due execution. But in any event the solicitors’ attendance notes and letters make it perfectly clear that the deceased knew very well what she was doing, and that she knew and approved the contents of the will that she executed. The will was read over to the deceased by an independent solicitor in the absence of the first defendant, and she was happy to sign it. I am quite satisfied that the will represented the deceased’s testamentary wishes. In my judgment, this head of challenge to the will fails.

The use of Solicitors by the deceased in Coles v Reynolds also played a large part in its final finding that there was no undue influence (paragraph 110):

My conclusion is that the allegation of undue influence in the making of the will is not made out. The deceased was independently advised by her solicitors, who were not acting for anyone else and who interviewed her on her own, and she satisfied them that she wished to make the will in the form that she executed. Given the breakdown in relations which I have found between the deceased and the claimant, the change in the deceased’s testamentary wishes is quite understandable, and, on that basis, it is hard to see what more she could have done to put it into effect. That the claimant does not like this is evident. But that does not mean that there must have been undue influence.

If you consider any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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