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HCR Law Events

10 June 2021

What happens when a will is contested?

Administering an estate can often be a difficult and stressful time for the deceased’s loved ones. The potential for a dispute to arise over the deceased’s estate will only add further strain.

Wills can be contested on a number of grounds, including:

  • On the basis that the testator (the person who made the will) lacked the appropriate capacity to make the will
  • That someone has exercised undue influence over the testator which has resulted in them making or changing their will
  • That the claimant was financially dependent on the testator and should properly have been provided for under the will
  • That the will was not validly executed or was fraudulent.

Some claims are harder to establish than others, but all will depend on the individual circumstances at the time the will was written. A claimant may make a request of the will draftsman and obtain a copy of the will file to establish:

  • What was discussed when the will was written
  • What the testator’s intentions were at the time
  • Whether there is any evidence the testator lacked capacity issues or was subject to undue influence.

Ultimately it is for the claimant to establish the grounds for their claim and notify the executors of their intention to pursue it.

Where a Grant of Probate has not yet been obtained, the claimant will usually seek to protect their position by entering a caveat at the Probate Registry. This prevents the executors obtaining a Grant of Probate and administering the estate. Caveats initially last for six months and can be extended or removed by the claimant.

The executors can seek to have that removed by entering a ‘warning’. The claimant must then set out their reasons for entering a caveat. If the Probate Registry accepts what the claimant says, the caveat becomes permanent and can only be removed by a court order.

Given the additional time and expense involved in obtaining a court order, it is usually in both sides’ interests to avoid the caveat becoming permanent and to reach a settlement between themselves. This can often be achieved through correspondence between the parties’ solicitors, although sometimes a more formal mediation meeting with an independent mediator is required.

If a settlement cannot be reached, court proceedings may be the only option.

How such disputes play out will depend on many factors, including the attitudes and motivations of the parties, each side’s willingness to incur the time and expense pursuing or defending any claim, as well as on the size of the estate.

Getting expert advice early on can help both sides avoid making costly mistakes and depleting the estate unnecessarily.

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About the Author
Beth King-Smith, Partner, Head of Disputed Wills, Trusts and Estates

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