Who will be involved in a will dispute?
The legal system can be confusing if you haven’t had any experience of it before you needed to challenge a will. Here we look at the people who will be involved and the roles they play in your will dispute.
If you find yourself in the position where you feel you must take steps to challenge a will -either because you think the will is invalid, or because you feel you should have received more from the deceased – you will quickly discover that a number of people will be involved at different stages and for different reasons. In many cases, the legal system gives different names to the people involved. In this blog, we explain who will – or could – be involved in your will dispute, and the definitions used in the legal system.
This is you – the person challenging the will. You must have ‘an interest’ in the will concerned. This usually means that you will have been a close relative of the person who made the will, or were treated as such, although there have been cases where someone with a more distant connection to the deceased was able to bring a challenge, such as the recent case of Randall v Randall. In that case, the ex-son in law of the deceased was able to challenge a will, as otherwise, he would not have been able to resolve an issue arising from his divorce settlement which was linked to his ex-wife’s inheritance.
This is the person – or people – who must answer your claim. This could be other beneficiaries of the will, the executors of the will (or the administrators of the estate if there is no will and you are challenging how an estate has been distributed under the intestacy rules). It is often the case that this will be another family member. At Willclaim, we also act for Defendants in will disputes, so if you are aware that someone is challenging a will that you are either involved in executing, or that you benefit under, we can advise and assist you to defend the claim.
You may initially approach an organisation like the Citizens Advice Bureau to raise your concerns, but if you are seriously considering making a legal claim in relation to a will or the contents of a will, you will need to take specialist legal advice from a solicitor with experience in ‘contentious probate’. Not every solicitor – and not every firm of solicitors – will offer this expertise, so make sure you choose carefully. The Association of Contentious Trust and Probate Specialists has a database of contentious probate specialists, or you may be able to find help from the Law Society using their ‘Find a Solicitor’ facility. We offer a comprehensive contentious probate service, dealing with all issues relating to contested wills and will disputes.
Will disputes are almost unique in that the person who is the best placed to explain the will and what happened in the preparation of the will – to say whether they were pressurised into making a will a certain way, or to explain why someone was left less than someone else – is no longer here. With the Testator deceased, it is important to gather together as much evidence as possible relating to the circumstances that have given rise to the claim. Documents such as medical records and letters written by the Testator at the time when the will was made and leading up to it. Evidence from witnesses will also be important. These are people who can give evidence about the Testator and the Testator’s state of mind; they may be able to explain family history or other evidence which gives more details that can be used in the claim, or in the defence of the claim. Ideally, the witnesses will be co-operative and supportive of your side of the argument. In some circumstances, if someone has useful evidence but is unwilling to attend court, it is possible to compel them to come and give evidence.
If you’ve already engaged a solicitor to act in your will dispute, you may wonder why a barrister needs to be involved. A barrister is legally qualified, and will specialise in particular areas of law, offering independent and objective advice on your case. They are also trained advocates and experts in presenting cases in courts and also in negotiations which is why, even if you may be looking to reach a solution without going to court – perhaps through mediation– your solicitor may suggest getting a barrister involved to look at your case. Barristers are independent, and although they work in offices known as ‘chambers’ with other barristers, they are usually self-employed, the chambers acting as an ‘umbrella’ organisation run by clerks who co-ordinate the work of the independent barristers. They will have experience of many other cases, and how these have been resolved, and this can be invaluable in determining the strategy to adopt
Although some will disputes do end up in court, many legal challenges are resolved through negotiation or through mediation which is a quicker, more flexible and cost-effective way to resolve the issues you have. Unlike a judge in a court of law, a mediator cannot impose a decision on you. He or she will explore what the parties – the Claimant and the Defendant – would like to achieve, and then facilitate negotiations with a view to reaching an agreement. If mediation fails, the case may then proceed to a full legal hearing. You can read more about the role of a mediator here.
Many will disputes are resolved through negotiation or mediation, but sometimes, this is simply not possible. The issues are too complex, or one or other of the parties (or both) are unwilling to compromise and reach a solution that both can live with. Ultimately, the dispute could end up in court, in which case, a judge will listen to the arguments put forward on both sides, examine the legal position, and reach a decision on the issue or issues, which will be in favour of either the Claimant or the Defendant. Having decided in favour of one or the other, the judge will then determine what should happen. The judge is restricted in what he or she can decide is the practical outcome (‘who gets what’) by legislation and court procedure, so you may find you end up with a result that doesn’t work as well as a mediated settlement, even if they judge ruled in your favour.
You may be surprised by the number of people who will be involved in your will dispute – it’s important to remember that this is a complicated area of law requiring expert advice to ensure a successful outcome. If you would like to talk to us about your situation, whether you are thinking of challenging a will, or you are a defendant in a will dispute, please get in touch! We offer a free initial assessment of will dispute claims, and can usually act on a ‘no win no fee’ basis if you decide to proceed with your claim.