Challenging a will – what to do if you think you have a claim

Most wills are straightforward to administer with executors ensuring that estates are distributed to beneficiaries in line with the deceased’s wishes. However, we do often hear from family members who are concerned about how a will was prepared or whether it truly reflected the deceased’s wishes.

Here we look at some of the key points to bear in mind and to set out what you can do.

What are the most common grounds to challenge the validity of a will?

• lack of testamentary capacity (for example, was the person of sound mind at the time?)
• lack of valid execution – was it done properly?
• lack of want, knowledge and approval – did they know and agree with what the will contained?
• undue influence
• fraud/forgery.

What information do I need?

It is vital that you gather as much information as possible before launching a challenge, as you will need to establish the basis for that challenge including:

• a family tree
• medical evidence
• correspondence with the deceased and/or potential parties to a dispute
• contemporaneous evidence (diaries/notes)
• evidence of handwriting/signature
• the will file from the solicitors who drafted the will
• copies of previous wills
• a copy of the disputed will

This information will help solicitors when they consider your case, but don’t worry if you don’t yet have the information – we can advise you and help you to obtain it.

Is there a time limit to bring a claim?

No, there is no set time limit.

Can you bring a claim against the solicitors who prepared the will?

Yes, that is possible – for professional negligence. Any claim should be brought by the executors on behalf of the estate and there is a six-year time limit in most professional negligence claims (from the date of the negligence) to bring a claim.

What steps can you take in the meantime?

If you are worried and want to protect your position, there are steps you can take:

• Obtain a copy of the will if you know or suspect that a Grant of Probate has been obtained. You can do this by downloading a copy from the government website (https://probatesearch.service.gov.uk/#wills). You will need to know the deceased’s full name and date of death and there is a £10 fee currently.

• You can apply for a caveat which can temporarily prevent probate from being granted by six months. You can do this by downloading PA8 Form from https://www.gov.uk/wills-probate-inheritance/stopping-a-grant-of-representation and submitting this to a local Probate Registry. There is currently a fee of £20. You should only do this if you have reasonable grounds to challenge a will. A caveat can be challenged and there are risks associated with entering a caveat– we would recommend taking advice before choosing this option.

• Gather as much information as you can from the solicitor who prepared the will, including written evidence describing any testamentary document which they know about (including the circumstances surrounding the will) or the details of who might have a copy. You can request documents before proceedings. However, if the documents are not forthcoming from the solicitor who prepared the will, you may be able to apply for disclosure.

Is it expensive to challenge a will?

It is often possible to use alternative dispute resolution as an effective way of achieving an early and cost effective settlement – our specialist team always takes a practical and understanding approach, taking into account the value of the estate, your objectives and the potential costs of litigation. We work with our colleagues in our Wills, Trusts and Estates team to achieve the best possible outcome for our clients.

For advice and help with a challenge to a will, please contact Beth King-Smith, partner and Head of Disputed Wills, Trusts and Estates on [email protected] or 01905 744 842