What happens in a Will Contest claim (how to contest a Will)
How to contest a Will
1. This blog is an update on our earlier blog following this topic. It should assist in describing what will typically happen in the Will contest claim.
2. There are two general types of Will contest claims. Firstly a claim that a Will is not valid because of problems with its execution (it was not properly signed by the person making the Will in front of two witnesses) and/or secondly because the person making the Will did not or could not have understood what he or she was doing or were “forced” to make a Will they would not otherwise have made. Secondly where a claim for financial provision is made under the Inheritance (Provision for Family and Dependants) Act 1975. I deal with the former rather than the latter here.
3. What happens then in a claim about the validity of a Will?
(a) If in time, a Caveat is entered which stops the Grant of Probate and thereby the distribution of the estate under the disputed Will
(b) As in most cases there is likely to be a question mark over whether the person making the Will (called the “testator”) had sufficient mental capacity to make it, we will seek copies of his or her medical records and statements from persons who knew her
(c) We will ask treating doctors and nurses for their views
(d) We will seek related records, for instance, Social Services and Carers records and reports
(e) We will draft a letter of claim to include a request for any missing or otherwise unavailable records to include the Will writers file and where appropriate (if the Will has been drafted by a Solicitor) we will ask him or her questions about the formation of the Will which they are obliged to answer!!
(f) There is then likely to follow an exchange of information and/or views and depending on the strength of your claim, it is usually the case that Alternative Dispute Resolution (in other words “without prejudice” negotiations, mediation (“without prejudice” negotiations with a professional facilitator called a “mediator”) will ensue and the claim will be settled
(g) It is sometimes necessary to obtain a report from an independent Psychiatric expert and/or to seek a confirmatory opinion from an experienced Barrister in more protracted claims. Certainly a Barrister’s opinion which is favourable to you will almost always be necessary if it looks like legal proceedings will be required to resolve the dispute and you want to take on insurance to protect you against the risk of losing the claim (ie to persuade insurance underwriters to cover you for the claim) – please note insurance protection (against in effect an adverse costs order) is only necessary where Court proceedings are issued and served. This will not inevitably occur in every case and indeed most cases are resolved before this step is taken.
4. Settlement – a claim is not going to be settled without some “give and take” and whilst you may consider your case to be sufficiently strong not to merit any compromise, this is rarely in fact the case. At the very least the cost of running the claim is likely to be a persuasive factor because in Will contest claims, it is not necessarily the case that the loser will always pay – in other words the estate can become encumbered with the costs of the dispute.