A brief guide on how to challenge a Will
If you want to know how to challenge a Will then you need to start by identifying the legal grounds upon which your challenge will be based. You then need to build a case by assembling evidence to support that legal challenge. Once you have done so then the case needs to be presented to those who are seeking to ‘propound’ the Will. If the matter cannot be informally resolved then you will need to commence court proceedings to have the Will declared invalid and set aside by the court.
The grounds for challenging the validity of a Will
When considering how to challenge a Will you must first identify the grounds upon which the Will is to be challenged. The most common grounds on which the validity of a Will can be challenged are:
(i) lack of testamentary capacity;
(ii) want of knowledge and approval;
(iii) undue influence;
(iv) fraud; and
(v) fraudulent calumny.
Who benefits from a successful challenge?
If the challenge is successful, the Will would be ‘set aside’. This means the estate will then pass to the beneficiaries named in an earlier Will (if one was made) or to the people who are entitled to inherit under the Rules of Intestacy ion there is no previous Will.
So working out who benefits from a successful challenge is critical and needs to be considered at the very outset. After all, there is little point in challenging the validity of a Will if you have nothing to gain from doing so.
Investigating the case
It takes time to investigate and build a case that can successfully challenge the legal validity of a Will.
Start by checking whether a Grant of Probate has been issued and, if not, lodging a caveat against the estate. By entering a caveat you can prevent the estate being administered and distributed in accordance with the terms of the disputed Will. It also buys you some time to carry out the necessary investigations.
The steps taken to investigate the validity of a Will include:
- obtaining a copy of the file of the solicitor who prepared the Will;
- asking for a witness statement from the solicitor who prepared the Will regarding the circumstances in which it was created;
- obtaining a copy of the deceased’s medical records; and
- asking the deceased’s GP or hospital doctor for a report on the deceased’s mental state at the time the Will was created.
Depending on the circumstances other steps may need to be taken to investigate the case, including use of expert evidence such as a graphologist (hand writing expert) in a fraud claim.
How to challenge a Will once the case has been investigated
Once the investigations have been carried out and you are satisfied that there is a strong legal case, a ‘Letter of Claim’ is then sent to the Executor(s) and the beneficiaries named in the disputed Will. Ordinarily, they would then have 21 days to provide a ‘Letter of Response’, setting out any objections or defences to the claim. It is common for additional time to be requested to do this due to the complexity of many Will challenges.
When those letters have been exchanged it is advisable for the parties to consider engaging in Alternative Dispute Resolution (ADR) such as mediation. ADR can be a very fast and cost effective way of resolving a Will dispute.
However, if the parties cannot reach a negotiated settlement, then court proceedings may then need to be issued.
Commencing court proceedings
Court proceedings can be commenced in several different ways, including:
(i) the Executor(s) issuing a claim to prove the disputed Will in ‘solemn form’; and
(ii) the challenger issuing a claim for a ‘Declaration’ against the validity of the disputed Will.
Either way, it is the court’s job to then determine whether the disputed Will is valid or not.
How we can help you challenge a Will
You can call our legal helpline on freephone 0333 888 0404 or contact us by email and we will provide you with a free initial case assessment.
We are highly experienced in challenging the validity of Wills as well as defending challenges on behalf of Executors and beneficiaries.
Our expert lawyers are usually able to assess whether a case has the potential for success if you have the information outlined above. We will also be able to tell you in most cases whether we can work on a No Win, No Fee basis.
If you do not already have the information that is needed to form a view on the merits of a claim, we can carry out the necessary preliminary investigations to establish whether your challenge has potential to succeed for an agreed fixed fee.
Once the strength of the claim has been established, we will then be able to consider whether we can proceed with the case on a No Win, No Fee basis, if that is your preferred option.
If you would like to discuss how to challenge a Will with one of our inheritance experts then call our free helpline on 0333 888 0404 or email us at [email protected]