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So you have made your Will, well done!
Often described as the most important document you will ever write, you have probably taken great care to make sure that your wishes are fulfilled.
Having a properly drafted Will, you are in the minority of adults in the UK. Most people say they still intend to make a Will, but many don’t get round to it!
You may have taken advice to make sure your Will is tax efficient, that your assets are left to spouses or partners or sheltered for future generations. Perhaps you have incorporated trusts in your Will to ensure that young people inherit at an appropriate age, or that vulnerable beneficiaries are protected.
Many of our clients also wish to leave money to a particular charity that they have supported, or perhaps to make provision for the care of a pet, and to set out their funeral wishes.
Having gone to the trouble of making a Will, you may be surprised to know that many people have died, having written Wills, but without the whereabouts or even existence of the Will being known to their families.
Solicitors up and down the country hold Wills for clients that they may have lost touch with. Homemade Wills and Wills kept at home can also become lost or overlooked.
I once found a validly executed Will in the airing cupboard of an elderly client who had died without informing anyone that the new Will had been made, let alone where it was kept!
It may come as no surprise then that the Law Society of England and Wales has endorsed Certainty, the National Wills Register, as a way of keeping track of whether or not someone has a Will.
The Register is completely confidential but allows people to search for a Will when someone has died.
The solicitor who made the registration is informed if an enquiry is made, allowing them to get in touch with the family.
There is a charge of £25 for entering information on the National Wills Registry but we provide registration at our expense to clients who subscribe to our secure storage service. All of our wills are kept securely in a safe which is protected by a Hobbs Hart & Co 4 inch thick iron door (pictured right).
Not only that but we welcome all subscribers to our service to pop in, or call us, if they have any questions about their Wills and we will not charge you.*
For more information about Certainty, please call Jeremy King on 01279 755777. Or visit
*Terms and conditions apply.
How to Challenge a Will: Step 1: Do you have grounds?
The four common grounds for disputing the validity of a Will are:-
Did the deceased have sufficient mental capacity at the time he/she made the current Will? The key questions are: did the deceased understand the nature of the Will; did he/she appreciate the extent of his or her Estate; and was there a “disorder of the mind” that altered his or her affections?
Lack of Knowledge and Approval
It is accepted law that the maker of a Will must know and approve of the contents of any Will executed. This will have much to do with the circumstances under which the Will was executed. This may be the case where a Will has been prepared under the instruction of somebody other than the deceased and that he/she has simply signed it without really knowing what it contained.
It also covers instances where a physical impairment may prevent the will maker from properly understanding the content of the will, such as poor eye sight, or illiteracy.
Undue Influence and Fraud
It is essential that any Will reflects the wishes of the will maker and not somebody else. It is up to whoever alleges undue influence or fraud to prove their claim and an allegation of undue influence in relation to the making of a Will is one of the most difficult allegations to sustain since the primary witness, the Deceased, is by definition not able to assist the Court.
Lack of Formalities
For a Will to be valid, it must pass certain formalities. For example, no Will shall be valid unless the maker is over the age of 18 and it is in writing and signed by the maker, and that this signature is made or acknowledged by the maker in the presence of two or more witnesses present at the same time and that each witness either signs the Will or acknowledges his signature in the presence of the Will maker. It is surprising as to just how many Wills fail this test.
How to Challenge a Will: Step 2: Will you be better off?
The key question is: do you stand to substantially benefit from challenging the latest Will?
It is essential that you think through the result should you successfully challenge 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 and are too complex to recite here. If you require further advice on these rules please contact us.
In summary you need to be sure that there is a benefit to you in challenging the Will before you incur significant costs.
How to Challenge a Will: Step 3: Caveats
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 your claim to be investigated in more detail, and hopefully lead to resolution. However, a Caveat has no effect if the Grant of Probate has already been issued, therefore it is vitally important to act quickly. If you are too slow in applying for a Caveat, you will instead have to apply for revocation of the Grant of Probate which is tactically less advantageous and more costly.
The Caveat will remain effective for 6 months, and can be extended indefinitely by written application for a further 6 months at a time.
How to Challenge a Will: Step 4: Evidence
Once your claim is protected by a Caveat, the next step is to investigate your potential claim and gather appropriate evidence. This will include obtaining a copy of the Will, studying the Will or Codicils and obtaining information about the circumstances of how the Will was prepared and executed. This may include obtaining witness evidence from the solicitors who made the Will, and the witnesses to the Will.
If mental capacity is an issue, it will be necessary to obtain medical evidence from the deceased's GP and any consultant physician and it may be necessary to obtain an independent report. Generally speaking, the Court tends to favour evidence from medical practitioners who actually had contact with the deceased over a period of time, over evidence from experts on dementia or other capacity issue, who have never seen the deceased and have reported “after the event”.
If fraud is an element to the claim it may be necessary for the Will or Codicil to be forensically examined by a handwriting expert.
In the case of undue influence, detailed evidence will be required from various individuals involved, for example, neighbours or friends of the deceased. There may also be other documentary evidence available, such as notes or letters belonging to the deceased or sent by the deceased.
How to Challenge a Will: Step 5: Set out your claim & take your case to your opponents
Once you have protected your position with a caveat and obtained sufficient evidence to substantiate your claim, you should send an appropriate letter to all parties, setting out the basis of your claim and requesting further information.
Such a letter is called a “Letter Before Claim” and should comply with the requirements set out in the Practice Direction for Pre-Action Conduct which is set out with the Civil Procedure Rules 1998. The Association of Contentious Trusts and Probate Specialists (“ACTAPS”) also publish a Code of Practice which sets out guidance on pre-litigation steps such as the initial letter, and this Code has been accepted and adopted on a wide scale and should be followed whenever possible.
Your opponents will then have a period within which to respond fully to the claim, and there should then follow an exchange of information, disclosure of documents and usually, some legal and factual argument to try and narrow the points in dispute.
How to Challenge a Will: Step 6: Consider settlement
As soon as there is enough evidence upon which to consider the merits of the claim and the prospects of success, you should attempt to enter into “without prejudice” negotiations with your opponent. The aim will always be to achieve a satisfactory settlement which will bring an early end to the dispute, thereby giving you certainty, peace of mind and limits the incursion of further costs.
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.
In any case, we would always recommend that negotiations and alternatives are explored in order to try to reach an early settlement. Alternatives include mediation, which can be a particularly effective method of resolving a dispute and is often the best way of resolving dispute where the parties have a possibility of preserving relations. This is often the case in probate and trusts disputes which involve family members.
How to Challenge a Will: Step 7: Commence proceedings
Before your claim is issued in court it will be necessary to consider other applications which may be necessary if the circumstances apply. Such claims could include a freezing injunction if there is a real danger that the estate could be dissipated before your dispute is resolved.
Most claims are issued in the High Court. The Claimant must file any written evidence upon which he or she intends to rely on at the same time the Claim Form is served on the Defendant. Anyone else who may be affected by the claim must be given notice of the claim. Such people may include beneficiaries under the Will, those entitled under any previous Will and those who would be entitled if there is an intestacy.
Your opponent will usually have a period of 28 days within which to defend the claim, and there will follow a period where each party may request from the other party further information, if necessary.
The next step will be for each party to disclose what documents they have which are relevant to the claim, and the duties to disclosure are quite thorough. Each party will then have the opportunity to inspect these documents. If it appears that your opponent is withholding certain documents which you think are in existence, it is possible to make an application to court to obtain an order for specific disclosure of these documents.
Throughout the conduct of your claim the case will be monitored by the court and it is likely that there will be several hearings to ensure that the case is progressing properly. These are called "case management conferences", and at these hearing the court will issue certain directions to the parties so that all necessary steps are taken before the case is set down for a trial.
How to Challenge a Will: Step 8: The Trial
At some point along the procedure, the court will become satisfied that the case is, or should be, ready for trial. At this point, the court will seek to list a date for the trial. In advance, each party would ordinarily instruct an expert Barrister to represent them at the Trial and send the Barrister a full Brief. The Barrister will then have full conduct of the trial on your behalf and your solicitor will also attend the Trial in order to assist and take further instructions from you as the case progresses. After having heard all the evidence, the Judge will make a decision and this will be drawn up in an Order. This Order will be binding on all the parties and will determine who has been successful in the case and how the Estate is to be dealt with. The Order will also determine who is to pay the legal costs.
How to Challenge a Will: Step 9: Costs
The costs of probate actions can be very high. 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.
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 be paid out of the Estate.
This is not the case.
Costs will normally be borne by the unsuccessful party. Therefore, if you are unsuccessful in your claim there is a significant risk that you will be liable for your opponent's legal costs. In the same vein, if you are ultimately successful your opponent is likely to be ordered to pay your legal costs personally.
The only party to a dispute who can reasonably expect their costs to be borne by the estate is the Executor if the Executor is not a beneficiary, and has been playing a purely neutral role in the dispute.
However, these rules are not set in stone. 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. As such, it is important that you deal with the dispute in a measured and reasonable manner, which is not always easy in what can be quite heated affairs. If either party acts or corresponds in an overly aggressive manner, the court can take against that party and this may be reflected in the Order that the court passes on who pays the costs.
At Nockolds we will always seek to provide clear and full costs estimates and advice from the outset, and will discuss various funding options.
How to Challenge a Will: Step 10: Tax implications
The way in which the dispute is resolved (whether by the Court at trial, or by earlier settlement) may well affect the amount of Inheritance Tax the Estate must pay. Therefore, tax implications should be considered from the outset and particularly in early negotiations, as some proposals may be tax advantageous by freeing up money that otherwise would have been swallowed up in tax, while other proposals may be disadvantageous by creating higher tax liabilities.
Solicitor Laura Hartley joined our Probate and Wills team in January, and within days was amazed to find that one of the estates she was dealing with had won a £1 million premium bond prize!
Peter King, partner and head of the Wills and Probate team (pictured with Laura and the team above) says “This was a remarkable start to Laura’s career with the firm. it is not uncommon for small Premium Bond prizes to be won after someone has died, and National Savings and Investments who administer Premium Bonds allow them to be retained for up to a year before they are cashed. However the chances of scooping the £1million monthly prize with a £100 holding are said to be only one in 400 million!”
Laura, who specialises in Wills, Probate, Inheritance Tax Planning, and Agricultural Estates, said she had to check the winning bond numbers very carefully before contacting her clients with the good news of the prize win!
Away from the office Laura is a keen hockey player and has recently moved to Bishop’s Stortford with her husband John, also a solicitor.
Peter presents a seminar on Inheritance Tax Planning at Bishops Stortford Golf Club next Tuesday (5th March). To reserve a place, contact Jamie McDermott on 01279 712566
Many charities depend to a varying degree on will bequests from generous patrons who wish to leave a little (or a lot) of their estate to a good cause when they pass away.
In recent years there has been a dramatic increase in the number of actions commenced at Court either challenging the validity of a will or seeking a larger slice of the estate in an Inheritance Act claim. In such cases, legacies to charities are often coming under attack and are at risk. If the Will in which a charity benefits is declared invalid, the gift will fail completely. Likewise, if a party seeking reasonable financial provision under the Inheritance Act succeeds, the amount due to the charity under the Will may well be significantly reduced and sometimes wiped out completely.
A significant number of the wills and probate disputes that we deal with at Nockolds involve at least one charity if not several. This trend is evident from the number of case reports involving charities that have been published in the press in recent years, such as the case of Ilott v Mitson where the three main beneficiaries defending the claim were large national charities. Another example is the much publicised claim brought by Christine Gill which led to the RSPCA having to forsake a bequest of over £2m.
Legacy protection is becoming a key strategy for many charities and legal advice and representation is often sought as soon as the existence of a potential claim becomes known. Such advice is indeed necessary as Trustees are under a duty to preserve the assets of the Charity. Whilst not known for being particularly litigious, the recent surge in cases has led to numerous charities taking a robust approach as a policy of necessity.
A crucial consideration for charities who find themselves in these circumstances is costs. The largest charities invest vast sums in legal fees with “magic circle” firms and QCs but for most charities this is simply not the way to go for obvious reasons. At Nockolds we appreciate the concerns and pressures the vast majority of charities are subject to and have tailored a complete legacy protection service designed to deliver expert, cost effective and practical advice when it is needed most.
For more information please contact Daniel Winter on 01279 755777 or email firstname.lastname@example.org
It has been possible to rectify the Will of a deceased person since the Administration of Justice Act 1982 came into force. The recent case in the Estate of Bridget Murray is an extreme example of a claim for rectification and demonstrates just how far some families will go to enforce changes to a Will which on the face of it, appears to incorporate the deceased’s last wishes.
Mrs Caroline Barrett was named a beneficiary of Bridget Murray’s Will. Bridget Murray, Mrs Barrett’s grandmother, a strict Catholic, made the Will a few months before she died. However, Mrs Barrett’s aunt and two uncles issued a claim to rectify the Will on the basis that:
(1) the legacy to Mrs Barrett was a drafting error by the solicitor who drew up the Will, and
(2) Mrs Murray actually had no intention of leaving any of her Estate to her granddaughter because, in her mind, her granddaughter had lived in sin by moving out of her family home to live with her boyfriend for the 18 month period prior to their wedding.
Under the Administration of Justice Act 1982 if a Court is satisfied that the deceased’s Will failed to carry out their intentions due to either a clerical error by the person who drafted the Will, or a failure by the Will draftsman to understand the instructions of the deceased, the Court may order that the Will be rectified to carry out the true intentions of the person making the Will.
In this particular case, the Court was satisfied that there was sufficient evidence to demonstrate that Mrs Murray did indeed intend to cut her granddaughter out of her Will. The Judge accepted that some might not agree with the strong religious views held by Mrs Murray, but it was not the Court’s decision as to whether those views were held fairly.
This case was widely reported in the press and is a good example of how rectification claims work in practice. It is also a clear example of how important it is that anyone who wishes to make a Will seeks professional advice and instructs someone who has sufficient experience and legal knowledge to draft the Will accurately so that it will carry out their intentions.