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06th January 2019

How to contest a Will

Contesting a Will can be a complicated legal challenge to bring successfully. It is strongly recommended that specialist legal advice is obtained from the outset.

Act promptly

Although there is no time limit within which you must bring a formal challenge to dispute the validity of a Will, the longer you leave bringing a claim, the more likely it is that the Estate will be distributed by the Personal Representative appointed to deal with the Estate. This in turn will make it harder to recover estate assets, should you ultimately be successful in setting the disputed Will aside. Do not therefore delay in pursuing your claim.

Obtain specialist legal advice

Contentious probate is a specialist and very niche legal area. Many people believe that simply because they are a close relative of the Deceased and are a disappointed beneficiary, that they have an automatic right to bring a claim to contest the Will. This is not the case and it is for this reason that specialist legal advice should be sought at an early stage. Our team at Hewitsons are all members of the Association of Contentious Trust & Probate Specialists (ACTAPS) and are therefore recognised specialists in this area.

Before pursuing a dispute as to the validity of a Will, it is important to establish firstly, whether you have “legal standing” to bring a claim (i.e. the right to bring a claim) and secondly, whether you have sufficient evidence to support one of the grounds required, to set aside the current Will in dispute.

The legal grounds for setting aside a Will include:

  1. 1. The Will was incorrectly signed and witnessed
  2. 2. The signature on the Will is not the Deceased's handwriting
  3. 3. The Deceased lacked the requisite testamentary capacity at the time they gave instructions for the Will
  4. 4. The Deceased did not know or approve of the contents of the Will
  5. 5. The Deceased was subject to undue influence

Assuming you have legal standing and there is reasonable concern as to the validity of the Will based upon one of the above grounds, detailed further investigations will then need to be undertaken to obtain evidence in support of your claim.

Investigations

Our specialist team can advise you on the appropriate investigatory steps that might need to be undertaken in your specific case. This may involve obtaining further details into the circumstances surrounding the preparation and execution of the Deceased’s Will, from the solicitors who took the Will instructions, for example. Alternatively, the Deceased’s medical records may need to be requested, or statements taken from the witnesses to the Will.

Negotiation

Once initial investigations are complete, should there be sufficient evidence to support your claim, your solicitor will formally put the Personal Representative of the Estate on notice of your claim. The Personal Representative will in turn notify the beneficiaries under the Will to be affected by your claim, who may seek their own independent legal advice.

The aim of early pre-action correspondence is to identify the matters in dispute, narrow the issues and obtain further information relevant to the claim. The ACTAPS Pre-Action Protocol encourages the early settlement of such claims where appropriate, through Alternative Dispute Resolution (ADR). There are a number of different forms that this may take, for example by way of a formal mediation, informal round- table meeting, or negotiation within correspondence. Hewitsons contentious probate team have a wealth of experience in negotiating settlements and will be able to advise you on the most appropriate method of negotiation to adopt in your claim.

Court action

Very few Will disputes result in court proceedings these days and even less are determined only at Trial. This is largely because Court proceedings are timely, costly and the outcome can be very hard to predict. Court is very much therefore a last resort. Should however, for whatever reason, court proceedings become necessary in your claim, our team are equipped with the skills set to guide you through the court process and have a proven track record of success at Trial.

Should you require any further advice or assistance on contesting a Will, please call Hewitson’s today on 0330 311 0885, to speak to one of our solicitors. We offer a free initial consultation, to all new clients, lasting up to 30 minutes. Alternatively, please complete our online form and a member of our team will be in touch to discuss your enquiry.

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