The importance of pre-action disclosure when you challenge a will
If you have been disappointed with the contents of a will – perhaps you have been inexplicably left out of the will of a loved one or close relative, or you have been left less than you understood you would receive – it is important to make an application for pre-action disclosure as early as possible.
Why are documents important in a will dispute?
One of the key difficulties in a will dispute is that the person who made the will is, by definition, unable to give evidence about why he the will in the way he did. Other people who were close to the testator may be able to give evidence – and almost certainly will be asked to do so. However, documents can also be a very important factor in determining what was going on at the time the will was made
What is pre-action disclosure in a will dispute?
Pre-action disclosure is a process for obtaining documents from the other side in a dispute. If you are thinking of contesting a will, this might be the executors of the will, other beneficiaries, or the solicitors who drew up the will. Many types of litigation have specific pre-action protocols which cover matters such as disclosure of documents. There is no such official protocol for will disputes. However, ACTAPS, the professional body which governs this type of litigation, has drawn up its own code which includes early disclosure of documents.
Why is it important to receive these documents and evidence early?
Litigation is an expensive and stressful business – particularly so if you are trying to cope with the death of a loved one at the same time. By accessing all the relevant documents early on, having sight of the will and being able to examine medical and other records early, you and your solicitor can make a decision about whether you have a claim, and, even if you have a claim, whether the results of winning the litigation would make pursuing the case worthwhile – sometimes, it may not be worth it. This could be because the result would mean that the estate would be distributed according to the rules of intestacy, or under a previous will, and you might receive nothing. Making these decisions early reduces uncertainty about what to do next.
Who will organise pre-action disclosure?
You may have already asked to see documents if you have been upset by the contents of a will. Even if you have done this, pre-action disclosure is usually something your will claim solicitor will organise. Most often, the request for documents will be made in a letter to the solicitors acting for the other side in the dispute.
What kind of documents might be revealed through pre-action disclosure?
The documents you can expect to obtain through pre-action disclosure will vary depending on the type of challenge you are considering, but they might include:
- The will itself, if you haven’t already got a copy
- Medical records
- Bank statements
- Letters
- Solicitors’ files from the time the will was drafted
- Social security records
- Social services notes
There may be other important documents – your solicitor will talk to you about the reasons you feel you have a claim, and from there, establish whether there might be other documents that could be helpful.
Pre-action disclosure and no win no fee arrangements
If you are worried about legal fees, you may have entered into a no win no fee arrangement to cover the legal costs of the will dispute. By obtaining documents through pre-action disclosure, you can make a better decision about the strength of your case and whether to continue under the no win no fee arrangement.
As will claim specialists, we follow the ACTAPS code and will always seek pre-action disclosure at an early stage in any will dispute. To find out more – or to kick off a free claim assessment, get in touch.