Martin Oliver, Partner in our Contentious Probate team, discusses the timings of contesting a will.
When someone finds themselves in a position of contesting a will, the question 'how long will this usually take?' often arises. From a solicitors' perspective, this can be difficult to answer as it depends on numerous factors which include:
- How the opponent responds to the claim;
- when it will settle;
- the appetite for litigation.
What are the usual timelines?
Ordinarily, only 2% to 3% of cases go to final hearing and the rest settle at some stage along the way (50% of cases settle before court proceedings are issued). For a client who wants to challenge a will, it is usually advised that it can take up to six months to get all of the evidence together to correspond and settle matters with the opponent, and if needs be, attend a mediation.
If court proceedings do need to be pursued, it can now take up to two to two and half years for a matter to come to trial.
As stated above, many cases will reach a settlement before proceedings are issued or when disclosure and witness statements take place which is usually between three to four months after proceedings are issued.
What can cause delays when contesting a will?
First and foremost, although you as the client are proactive and want to move things along, your opponent may not be so cooperative. They may be difficult and delay matters for you.
Another delay comes from third-parties that are needed to assist your case. For example, if you are challenging a will on the grounds that someone not having testamentary capacity (where the testator did not have capacity to make the will), their medical records would need to be obtained as supporting evidence. It is now common practice that this can take two months to obtain.
After this, you would need to obtain the previous solicitor's file of papers who drafted the will of the deceased. This can take from seven to 28 days depending on how fast the solicitor responds.
Once you have obtained the above, and if necessary got witness statements from various parties, this can overall take up to three months.
It is common practice to send a Letter of Claim to the opponent which usually gives them three weeks to investigate and respond. Ideally, they would respond within this timeframe to keep litigation moving forward. However, the majority of the time it is necessary to send chasing correspondence or you may find that the opponent is evasive in their responses which ultimately slows the process down.
Another aspect to consider is how many witnesses there are. If there are numerous witnesses or they are difficult to locate or contact, this can slow down the process.
Furthermore, there may be issues in trying to locate the will. Although there is a service available to search for wills, often it is necessary to write to numerous solicitors querying if they hold a will in their will bank.
Conclusion
Although it can be difficult to predict how long it will take to contest a will, your solicitor will advise you on what steps are being taken and should put them in writing underlining:
- When these steps are being taken
- How the case is progressing
- What responses have come back
- How it impacts the timetable of progressing the claim
It is also strongly encouraged from day one to consider mediation. Not only can it be arranged at short notice but it can bring the timeframe down by a substantial amount. There have been instances when mediation has taken place in two to three months of instruction and the matters have been settled (providing all of the documents are available at that time).
Click here to find out more about how our Contentious Probate team can help you.
The information provided in this video is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here 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 here. 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.
