There are several factors to consider when either contesting a Will or defending a claim where the validity of a Will is questioned. The grounds for contesting or challenging a Will are explained here. In addition, thought should be given to the following:
What is the Result of a Successful Challenge?
The key question is: ‘who stands to substantially benefit from contesting the Will?’
It is essential that you think through the result should you successfully challenge or defend a Will. It is the previous Will which will then become the matter of probate (subject, of course, to the preceding Will being valid). If the preceding Will is also invalid, then this process keeps on going until an earlier valid Will is found.
If there is no prior Will, then the rules of intestacy will apply. These rules arbitrarily divide the estate between various classes of relatives. If you require further advice on these rules please contact us.
Larke v Nugus Enquiries
Additional evidence that will be required is evidence from the solicitors who prepared the Will and witnessed the Will. In the case of Larke v Nugus (1979) 123 S.J. 337, the Court of Appeal (Civil Division) upheld advice given by the Law Society, that when a serious dispute arises as to the validity of a will, the solicitor who prepared the Will should make available a statement of his or her evidence regarding the execution of the Will and the circumstances surrounding it to anyone concerned in the proving or challenging of that Will.
Larke v Nugus enquiries are an important part of the preliminary investigations and it is necessary to ask appropriate questions of the Will draftsperson, analyse the answers received thoroughly, and assess what further information may be required.
If it appears that there is reasonable cause to doubt the validity of the last Will, a Caveat is usually issued as a preliminary step.
A Caveat prevents the Executors from obtaining a Grant of Probate and whilst the Caveat remains in force the estate is effectively frozen, allowing the claim to be investigated in more detail, and hopefully lead to resolution.
The Caveat will remain effective for six months, and can be extended indefinitely by written application for a further six months at a time.
However, a Caveat has no effect if the Grant of Probate has already been issued. In cases where a Grant is already in place the person challenging the Will needs to consider taking steps to put the distribution of the estate on hold, and applying to revoke the Grant.
A party who believes the Will to be valid and who wants the probate to proceed can issue a "Warning" from the Leeds District Registry, on the person who entered the Caveat. On receipt of the Warning the person who entered the Caveat has eight days to react and enter an "Appearance" by notice. If an Appearance is not entered, the Caveat can be permanently removed. If an Appearance is entered, the Caveat becomes permanent and can then only be lifted by consent or Court Order.
As soon as the merits of the claim are known and prospects of success are assessed, the parties can enter into discussions to try and reach resolution. Court proceedings should be the last resort, but are sometimes necessary.
The aim will always be to achieve a satisfactory settlement bringing an early end to the dispute, thereby providing certainty, peace of mind and keeping costs down.
It is now an obligation of all parties to a dispute to at least consider settling the dispute outside Court. If a party fails to enter into negotiations or other alternative dispute resolution procedures, without good cause, the Court has wide ranging powers to punish that party with a costs order, even if that party is ultimately successful in the dispute.
Alternatives to Court include mediation, which can be a particularly effective method of resolving a dispute whilst retaining the possibility of preserving relations. This is often appropriate in probate and trusts disputes which involve family members.
In the case of estates of relatively small financial value, the costs of disputing a Will can be prohibitive.
However, in the vast majority of cases it is possible to reach a conclusion before it is necessary to issue Court proceedings, and in cases where Court proceedings have been issued, cases can be settled at any time before Trial.
You may be surprised to note that a very small percentage of probate disputes actually ever reach a Trial. This means that even if the size of the estate is modest, provided there are clear grounds for a challenge with good evidence, a resolution can be reached with costs kept in proportion.
However, it is vital to consider the impact of costs before you embark on a claim. We have come across many parties to a dispute who have begun a probate claim in the mistaken belief that all of the legal costs will automatically be paid out of the estate.
This is not the case. If the case is decided in Court, costs will normally be borne by the unsuccessful party, although the Court has a wide discretion when it comes to deciding who will pay costs, and will usually try to ensure that the question of costs is dealt with fairly and with reference to each party's conduct during the dispute.
Nockolds is able to offer various flexible options to fund claims and defences in Will disputes, which can include a traditional pay-as-you-go retainer, or deferred payment which means you will not need to pay until your case has been concluded, or conditional fee agreements where you only pay if your case is successful.
For further information on contesting a Will and to find out how we can help you, please contact our Will and Trust Disputes Team on 01279 755777 or get in touch with Daniel Winter, Partner in our Will and Trust Disputes Team.
Nockolds Solicitors is delighted to announce that the firm has won ‘Law Firm of the Year’ for ‘Contested Trusts and Probate’ at the 2015 and 2016 Lawyer Monthly Legal Awards.