What is the process of contesting a Will?

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You may have questions regarding the validity of a Will after a family member or loved one has passed away. You may now be wondering firstly, if you can contest the Will, and secondly, how does the process work? 

In cases where a resolution cannot be found the claim is then taken to court. It can take months or even sometimes a year or more to be heard in Court and is the most expensive option.

What is a Will?

A Will is where a person, known as the Testator, has in written form listed their wishes for how their estate will be divided out in the event of their death. They are able to divide their assets between any individuals, organisations, trusts or charities of their own choosing. 

A will can not be contested whilst the Testator is still alive. In most cases it must be contested within six months of the Grant of Probate being issued. 

What is a Grant of Probate?

A Grant of Probate is a legal document that authorises the executor to deal with the deceased assets. It confirms that they are able to access the funds, deal with property and collect and share out their possessions. 

The first step would always be to consult with a solicitor. Contesting a Will is a complicated process that has required steps and you will need their expertise. A good solicitor should always inform you if they don’t believe that you have a case. It is a costly endeavour so before you enter into it you need to know that you have a case worth fighting. 

Reasons to contest a Will

Reasons why you may want to contest a Will – 

  • You believe that the Will has not been executed correctly – For a Will to be executed correctly it must be in writing. It must also be signed by the Testator and at least two other witnesses who must sign after the Testator. 
  • You believe that the Testator wasn’t at full mental capacity when making their Will – This could be due to an illness such a Dementia or Alzheimer’s Disease. A Testator must understand all of the decisions that they are making. They must also be aware of the full value of their estate. 
  • You believe they were coerced into making the decisions – There must not be any undue influence from outside sources. All of the decisions must be their own. 
  • You believe the Will was forged. 

Sometimes a dependent of the deceased will not be questioning the validity of the Will but will instead believe that adequate financial provisions have not been made for them. In these cases they would contest the Will under the Inheritance (Provisions for Family & Dependants) Act 1975. 

The steps involved in making the claim

Once you have spoken to your legal team and have decided to go ahead with Contesting the Will your solicitor should lodge a Caveat. This is the formal claim to the Probate Registry Office. Whilst a claim is raised a Grant of Probate cannot be issued. The Caveat lasts for six months but can be extended if the case has not reached a conclusion by this point. 

Your solicitor will need to access records such as medical records or land registry fees. In the case where you think the Will may be forged a handwriting expert would be called upon. 

A Larke v Nugus statement is requested from the original solicitor who oversaw the drafting of the original Will. 

A formal letter of claim is made and sent to all of the parties involved. This letter explains the details of why the Will is being contested and what the desired outcome is. The executors of the Will also receive a copy of this. 

Out of court settlement and Mediation

In most cases the solicitors will endeavour to settle out of court. This not only keeps the expense down but it is also the quickest way for everyone involved.

Meditation is offered as an option. Whether the case can be resolved out of court will depend on how cooperative each party is. 

Taking the claim to court

In cases where a resolution cannot be found the claim is then taken to court. It can take months or even sometimes a year or more to be heard in Court and is the most expensive option.

The judge overseeing the trial will then hold the final decision and will also decide who pays for the costs. Oftentimes the losing party will be ordered to pay the costs although it is highly unlikely that any party will recoup all of their expenses.

In certain circumstances the judge can order the deceased estates to cover the costs. 

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