No win no fee and will contest claims

It is becoming quite rare to find Solicitors able and willing to take on a will contest claim under a no win no fee agreement. There are three good reasons for this:

1. They are very difficult claims to win and moreover to resolve by amicable agreement as invariably there is a good deal of acrimony
2. When they are won, there is often a long period between the settlement and the date of eventual payment, quite simply because there is often a property to sell
3. Emotions are high and the obvious unfairness of a loved relatives Will is often taken as compelling evidence that “something is not right” or in legal terms of undue influence

A claim that a loved relative was unduly influenced is akin to an allegation of fraud. What this means is that the hurdle over which your solicitor has to jump is much higher if such a claim is made. Effectively, you have made it much more difficult to win your case. Understandably then your lawyer under a no win no fee arrangement may not be keen to take on such a case. He will want to know where the independent evidence of undue influence is likely to come from as independent evidence, preferably from professionals, is going to carry the most weight for a Judge. Regrettably ones assumptions based on historical promises of equality and fairness voiced by you the client will carry very little weight or strength at all.

This then is the key to winning your claim – independent evidence preferably from professionals. In the majority of cases where a claim is made the Will cannot be valid, your lawyer will be looking for evidence of lack of capacity, the most obvious examples of which will be evidence from treating doctors or consultants (in other words independent medical professionals).

Independent evidence from a professional is different from independent expert evidence. The latter does carry some weight; for instance the evidence of an eminent forensic Psychiatrist who (whilst never having treated the deceased) considers his or her medical records and forms a “favourable” view that leads one to doubt capacity at the time the Will was made. However it is not as strong as the evidence of a treating doctor, even a GP. If a GP has been asked to confirm capacity at the time the Will was made, this is likely to make it almost impossible to overturn.

In a recent enquiry, we were asked to consider taking on a claim which had run for a number of years, that a Will was not valid because the person making it had dementia at the time it was made. The previous Solicitors were acting on a paid basis (ie not under a no win no fee agreement). They had commissioned 2 experts reports from experts who had not treated the deceased who each confirmed that he lacked capacity when he made his Will. We were approached and asked to consider the papers with a view to taking it on under a no win no fee arrangement. We did consider the papers but found that in the period the Will was made (and for about a year either side of it) the deceased had not really been treated or assessed so there was no independent evidence at all of his condition when the Will was done. We did not therefore take it on.