Who pays the fees to contest a Will?

A document with the text reading "Last Will And Testament"

It is always an emotional and troubling time when a loved one passes away and if issues then arise with the Will this can only add to the already heightened emotions.

In England and Wales we have what is known as the “Freedom of Testamentary Disposition.” This means that someone can choose who they wish to leave their assets to and how they would like them dividing between several people, trusts or charities. 

A will, simply put, is an individual document written and executed by the Testator, outlining how they would like their assets such as money and property, dividing in the event of their death. As the Will does not come into effect until their death it cannot be contested at any time before this point. 

If you believe that reasonable financial provisions have not been made for you under the will then by seeking legal advice you will be informed whether you have a valid claim.

Contesting a Will

Contesting a Will can be a lengthy and costly process. It can cause arguments and upset within families so should not be entered into without due thought and consideration. 

For a Will to be valid it must comply with section 9 of the Wills Act 1937

  • Be made in writing and signed by the Testator. 
  • It must be acknowledged in the presence of two witnesses. These witnesses must also sign in the presence of the Testator. 
  • The Testator must be of sound mind when making their will. 
  • They must know and understand the value of their estate and also understand the consequences of their decisions. 
  • The Testator must not be coerced into making any of the decisions. 

If you feel that any of these points were not met at the time of the making of the will, then you can contest this under the “Contentious Probate Claims.” If you believe this to be the case then it is advisable to seek legal advice as soon as possible. 

If you believe that the Will is valid and that all of the above points were met but you still wish to make a claim there are two other contentious probate claims that can be looked into. These are as follows. 

The Inheritance (Provisions for Family & Dependants) Act 1975 – 

This claim is used when a family member, such as a spouse or ex spouse who has not entered into a new partnership, a child of the deceased (or step-child) or anyone that was financially dependent on the deceased contests the Will.

If you meet the above criteria and you believe that reasonable financial provisions have not been made for you under the will then by seeking legal advice you will be informed whether you have a valid claim. This is then looked into by the Court who will decide if the correct financial provisions have been made or if not. They will then decide what they believe are suitable provisions. 

Proprietary Estoppel 

This claim would be made if you believe that the testator gave you an assurance whilst they were still alive that you would receive all or part of their assets and that you are now at a disadvantage that this hasn’t come to fruition. 

In Summary

As it was mentioned above, raising a claim against a will can be expensive. The cost varies from case to case and can depend on how long it takes to resolve, how cooperative each party is and whether it can be resolved out of court.

Each party involved in the dispute would be responsible for their own legal costs.

If the matter isn’t resolved and results in a trial, the judge would then decide who pays the costs.

Many times the losing party is ordered to cover all the costs for the parties involved although in some cases this can be covered by the estate of the deceased. 

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