Our guide to the role of the courts in a will dispute

The Role of the Courts in a Will Dispute

You may be concerned about a will and be worried that it doesn’t reflect the real intentions of the person who made it, or feel that you should have received a greater share of the estate. Challenging a will can be a daunting process, especially if you have no experience of the legal system and how the courts work. In this blog, we explain the role of the courts in a will dispute.

Starting the Process in the Courts

When contesting a will through the courts, it can be difficult to know where to start.

First, it is important to contact a solicitor and develop a clear plan for what grounds to challenge the will, before deciding whether to bring the will dispute to court. Grounds for challenging a will include:

  • Lack of testamentary capacity: if the testator was not in a fit state of mind to make a will;
  • Undue influence: if another person had undue influence over the testator’s decisions about the will;
  • Inheritance (Provision for Family and Dependants) Act 1975: claims for reasonable financial provision if the dependants on the deceased are not properly looked after financially under the terms of the will; this type of claim does not challenge the validity of the will itself.

Next, with the help of a solicitor, you may consider registering a “caveat” at the Probate Registry Office to prevent property from being distributed through the will until after your dispute has been resolved. The beneficiaries will be informed of your claim on the will. If they do not agree and the dispute continues, the case may be taken to court.

Civil Courts

Contentious probate cases are heard in the civil court system. The case will initially take place in either the High Court, Chancery Division in Central London, or a local Court which has a High Court Chancery District Registry. However some County Courts such as the County Court in Central London can also hear these cases. In a will dispute, there will be a judge, but no jury. The judge will hear the evidence on both sides, and finally make a judgement on the facts of the case and the outcome.

If there are disagreements over what happened when the will was made, the judge will decide which version of the facts to accept. This will be on balance of probabilities (i.e what is most likely to have happened based on the evidence). Judges will usually accept some facts but reject others from both sides of the dispute. The judge will decide on this basis whether the claim should be successful, how much money to award the successful party, and which party should pay the legal costs.

The Appeals System

An unsuccessful party can request an appeal, but the judge will only agree to appeal the case to a higher court if there is a reasonable prospect that their case could succeed. If the case is appealed from County Court, then it will be heard at the High Court; for contentious probate matters this will be the Chancery Division of the High Court. A further successful appeal would be brought to the Court of Appeal. Finally, if there is a particularly complex point of law (a legal question which has no clear answer), the case could be appealed further to the Supreme Court. However, it is rare for contentious probate matters to be appealed to that level.

Legal Costs  

Challenging a will can be expensive, and once a case goes to court legal fees will quickly add up. At the end of the dispute, the judge will decide which party is ordered to pay legal costs. There is a general rule in civil litigation that the unsuccessful party pays both their own costs, and also the costs of the successful party. However, judges have discretion as to which party should pay.

Alternatives to the Court System

Contesting a will through the court system is a stressful and lengthy process, especially considering additional risk of the will dispute being appealed. However, there are alternative methods of dispute resolution available. For example, it is possible to settle a will dispute through mediation. Unlike other types of legal disputes, contesting a will does not require mediation; it is merely an option. Benefits of choosing mediation instead of going to court include flexibility of possible solutions to the dispute, lower legal costs, and the possibility of reaching an outcome much quicker than through the court system. You can read about this in more detail here.

As will dispute experts, we regularly resolve claims for our clients through negotiation and mediation. Where these avenues prove unsuccessful, we are experienced at pursuing these cases through the court system for our clients. To get in touch to discuss your claim, Call us on 020 3322 5103, or complete our free claim assessment request.