We are continuing to see increasing numbers of contentious probate enquiries but what are the practical considerations to think about before embarking on this sort of litigation.
Earlier wills
If you are successful in challenging the validity of a will the outcome is that the terms of an earlier will, (if any, and, if there is not one, the intestacy rules) will apply. It is therefore important at the outset to check whether there are any earlier wills and see what their provisions are, or consider what the effect of an intestacy would be as, if you do not benefit to any greater extent there will be no merit in pursuing a challenge to the validity of the last will.
Caveats
If you are considering a will validity challenge the first steps you will need to take will be investigative and that can take some time. If a grant of representation has not been taken out in the estate a caveat can be entered at the Probate Registry to stop one. Without a grant, no one can take steps to distribute the estate and potentially dissipate assets. This therefore allows you the time you need to make your enquiries. A caveat should be withdrawn if the outcome of those enquiries is that you no longer intend to pursue a claim as it is a costs risk to either enter it, or leave it there, without good reason.
It is not necessary or appropriate to enter a caveat if you are seeking to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for greater provision from the estate as you can bring a claim once a grant has been issued (see time limits below).
Time limits
A will validity challenge can be brought within 12 years of the date of death; but delay is not recommended as assets could be dissipated if distributed under the terms of the will without challenge.
A claim under the Inheritance (Provision for Family and Dependants) Act 1975 has a much tighter time limit and needs to be brought within 6 months of the date of the grant of representation. In certain circumstances, an application can be brought to bring a claim out of time, but that is an extra hurdle to have to jump through and an applicant will only be successful if the claim is meritorious and if they were not aware of this time limit.
Judge’s approach
Increasingly courts are taking 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. 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; in English law we have the principle of testamentary freedom.
In Inheritance (Provision for Family and Dependants) Act 1975 cases each case is different as the claim is based on financial need and everyone’s financial circumstances are different, so it is often difficult to quantify the value of the claim. There is a common misconception that there is a precedent that each claim is worth 10% of the estate which is simply not true; some claims are worth far more and some far less.
Costs
Costs in contentious probate proceedings can be significant and quickly escalate. It is not unusual for costs of claims that reach trial to be in the region of £100-150,000 per party. In Perrins v Holland [2009] EWHC 2558 (Ch) the total costs were £183,000 in an estate worth £160,000. For that reason, it is important to be sensible from the outset; to not pursue speculative claims and to try to settle at an early stage, before both your own, and the opposition’s, costs become obstructive.
Sometimes people assume the estate will bear the costs, but the usual rule is that the costs follow the event as with any litigation, so the losing party pays the winner’s costs - unless the court exercises its discretion differently, which in practice is rare. At the outset the client therefore has to be willing and able to pay their own costs and those of their opponent if they are unsuccessful; conditional fee arrangements and/or after the event insurance may need to be considered in order to fund the litigation.
Naturally in this sort of litigation emotions run high because the parties are embroiled in what is invariably a family dispute coupled with them having suffered a bereavement and it is not uncommon for their judgement to be clouded. The litigation is risky because the best evidence is not going to be available i.e. that of the deceased. In addition to the financial cost and litigation risk, parties also have to be mindful of the time that will be involved for them personally in pursuing such a claim, the delay in the estate administration (which can be several years), the stress and heartache, and the impact on family relations which can be irreparable.
Expert advice is imperative. In Barnaby v Johnson [2019] EWHC 3344 (Ch), a litigant in person unsuccessfully challenged the validity of the will even though she would only inherit £10,000 under the terms of the previous will if she were successful. The claim was therefore without commercial merit, but also, she had no prospect of success on the legal grounds and the judge said the claim should never have been brought. She is likely to face an order to meet the other side’s costs which could well exceed £100,000.
This sort of litigation is not a venture to be entered into lightly, yet because it is popular in the media, advisors worry it is underestimated and almost glamorised.
Originally written for the Gazette.
