Although most never reach a final hearing at court, the number of will-related disputes is growing year on year. Contesting a will is rarely straightforward: it is a complicated legal process requiring careful management and is often emotionally and financially draining, putting family relationships under considerable strain.
In England and Wales, we all have testamentary freedom which means there are no legal constraints (unlike some other countries) on how and to whom we choose to leave our assets. However, rising house prices and increasingly complicated family structures mean that, for many families, there is considerably more money at stake when a relative dies, and greater incentive for family members to challenge a will if their expectations of inheritance have not been met. In this article we endeavour to explain the practical considerations of this type of litigation and how to minimise the attendant risks. It’s worth remembering at the outset that a claim cannot be brought simply because of perceived unfairness or inequality, or because the terms of a will are not to the liking of a disappointed beneficiary.
Contesting a will: understand the legal grounds
A will can only be challenged if there is reason to believe it is invalid. Making a claim against an estate under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) because insufficient financial provision has been made under a will or the intestacy rules, can only be made by those who are eligible. This type of claim is not the same as challenging the validity of the will.
For a will to be declared invalid, the grounds for challenge are as follows:
1. Lack of Testamentary Capacity
The legal test for determining testamentary capacity was originally established by a 19th century case, Banks v Goodfellow. This requires the person making the will to:
- Appreciate the nature and consequences of making a will.
- Understand the extent of his / her property.
- Consider any potential claims on their estate (for instance, financial dependants).
- Not be affected by any disorder of the mind or insane delusion
2. Insufficient knowledge and approval
This differs from testamentary capacity in that it refers to a more general test of understanding, namely that the testator was able to understand and therefore approve the content of their will. Even if the will was executed correctly, a court will require proof that that the testator was not physically incapacitated to the point that they were unable to know or approve of the will, for instance if they were deaf, unable to speak or write, paralysed, blind or illiterate.
3. Undue Influence
Undue influence is when the person who made the will (the testator) is believed to have been pressured or coerced into making or changing their will against their own volition. In Royal Bank of Scotland v Etridge two forms of undue influence were described:
- “Overt acts of improper pressure or coercion, such as unlawful threats”
- “A relationship where one has acquired over another a measure of influence or ascendancy of which the ascendant person then takes unfair advantage… without any specific acts of coercion.”
The individual who asserts that the testator was subject to undue influence is the one who has to prove that this is the case. These types of cases are few and far between and are notoriously difficult to bring successfully as the burden of proof is akin to the criminal standard of ‘beyond reasonable doubt.’
4. Fraud or Forgery
If it can be proved that either the entire will or the signature of the person who made the will is forged, or the content of the will is fraudulent, then it can be declared invalid if the case is provided to the court. A fraudulent will will not reflect the wishes of the testator; it is similar to undue influence but does not require coercion.
5. Failure to comply with formalities
Wills have to be executed according to the requirements of the Wills Act (1837). They must be:
- In writing, and signed by the person making the will (testator)
- Signed by the testator with the intention of creating a valid will
- Witnessed by two people either in person when the testator signs, or the witnesses must be told by the testator that it is his/her signature.
- Signed by the witnesses having seen the testator sign, or signed in the knowledge that it is the testator’s signature on the document which they signed, with the intention of creating a valid document.
Strictly speaking, a will will not fail if it has not been dated.
Tip: Consult an accredited member of the Association of Contentious Trust and Probate Specialists (ACTAPS) at an early stage to evaluate if you have valid grounds for a challenge. We have four fully qualified ACTAPS members; one fellow; and one who has just started the academic element of her accreditation. Contesting a will without solid grounds is not only likely to fail but can also prove to be very expensive.
Consider mediation: an alternative to court
Mediation, as a non-adversarial approach to dispute resolution, has been gaining in popularity over the last decade or so, particularly in disputes between family members who do not wish to become unnecessarily embroiled in protracted, expensive litigation. It is now a given that in nearly all cases, mediation will be attempted. Mediation, being more conciliatory and less confrontational, is also likely to be:
- Less expensive than going to court.
- More successful in finding a flexible resolution that both parties can live with.
- Useful in helping to preserve family relationships.
Tip: Propose mediation early on. However, an important caveat is that for mediation to succeed, both parties must want to participate and be willing to fully commit in the knowledge that some concessions will be needed to ‘meet in the middle’.
Consider the financial implications
Costs in contentious probate proceedings can be significant and can quickly escalate. The cost of claims that reach trial can range from £150,000-200,000 per party or even more. As a cautionary tale, in one particular case (Perrins v Holland [2009] EWHC 2558 (Ch)) the total costs were £183,000 in an estate worth £160,000. Therefore, it pays to be sensible from the outset; don’t pursue speculative claims; and try to settle at an early stage, before both your own, and the opposition’s, costs escalate out of control.
Contrary to expectation, an estate does not bear the costs of this type of litigation. As with any other type of litigation, the losing party pays the winner’s costs - unless the court exercises its discretion differently, which rarely happens in practice, or one of two exceptions apply. If you decide to bring a claim, you must be willing and able to pay your own costs and those of your opponent if you are unsuccessful. Conditional fee arrangements and/or after the event insurance may need to be considered in order to fund the litigation.
Tip: Have a frank discussion with your solicitor about the likely costs, ensuring you factor in counsel’s fee and VAT and the potential costs’ outcomes. Consider the worst-case scenario and if you can weather the financial implications of an adverse judgment. However, it is worth noting that around 30% of cases settle before proceedings are issued, and only around 2% of cases proceed to a final trial at court.
Gather evidence
You will need strong, credible evidence if you want to challenge a will successfully. Increasingly the court takes a robust approach to will validity challenges and will require persuasive and compelling evidence to overturn a will, particularly where it has been professionally prepared, as great weight is attached to medical and solicitors’ evidence. As a minimum, consider the following:
- Document everything: Gather all relevant documents, emails, or other communications that could support your case. This will stand you in good stead when it comes to the phase of the court process known as ‘Disclosure’.
- Expert Witnesses: You may need to engage medical professionals to prove testamentary capacity or handwriting experts to assess the will’s authenticity. If the testator’s signature is in question, the more samples of the signature which are available from around the same time the purported will was signed, the more likely the chance of the expert being able to conclude one way or the other.
Tip: Start gathering evidence as soon as you suspect there might be an issue. The more evidence to support your claim, the better.
Understand the legal process and timeline
There is no deadline by which a will validity challenge must be brought but a lengthy delay in taking action is not advisable as the assets from the deceased’s estate are likely to have been long distributed and would be very difficult to trace and recover, even if the last will was declared invalid.
Contesting a will up to, and including, a final hearing (trial) can take 18 to 24 months, or longer depending on the court’s availability, to resolve. There are various factors that determine how long it will take to resolve a challenge including the court in which you have issued your claim (the options being the Chancery Division of the High Court in London or the various regional courts such as Birmingham, Bristol and Leeds) and the capacity of the court to list the trial. Regional courts can sometimes have shorter waiting times for listings compared to the main Chancery Court in London.
Tip: Work closely with your legal team to understand the timeline and what to expect. Patience and persistence are key to a successful outcome.
Alternatives to contesting a will
There are alternatives to contesting a will that may resolve the situation more quickly, cheaply and amicably. These could include:
- Deed of Variation: Providing all the beneficiaries agree, it may be possible to renegotiate the distribution of the estate. However, this must be done within two years of death if the terms are to be ‘read back’ for tax purposes.
- Asking trustees to exercise their discretion: If the estate falls into a trust of which you are a discretionary beneficiary, there may be scope for the trustees to exercise their discretion in your favour (providing it aligns with the purpose of the trust and any guiding letter of wishes).
Tip: Consider all avenues before issuing a claim to contest a will. There may be less risky and less confrontational solutions available.
In summary
It is not surprising that emotions run high in this sort of litigation. The parties involved are not only embroiled in what is invariably a family dispute, but they have also suffered a bereavement, so it is not uncommon for their judgment to be clouded. And it is not only the financial cost and litigation risk to consider: these claims also take up an enormous amount of time and can delay the estate administration for several years. Following the case of Churchill v Merthyr Tydfil CBC [EWCA] EWCA Civ 1416 it is worth noting that we are expecting to see judges making orders early on in a case in a bid to encourage mediation between the parties, without the need for the court’s involvement.
Contesting a will is a serious decision that should not be taken lightly. By understanding the risks, preparing thoroughly, and considering alternatives, you can avoid many of the common pitfalls associated with the premature issuing of a claim to contest a will. With careful planning and the correct legal guidance, you can navigate this challenging process more effectively, preserving both your interests and your family relationships.
The materials on this website are provided for general information purposes only, and do not provide definitive advice. They do not amount to legal or other professional advice and so you should not rely on any information contained on this website as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published on this site. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
