BUILDING A WILL CONTEST CASE – FIRST STEPS 

WillClaim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss the key pre-action steps needed to build the best case for challenging a will. We touch on the case of Addison & Anor v Niaz [2024] EWHC in which a solicitor was ordered to pay costs for her failure to engage properly with a Larke v Nugus request.  

What are the grounds for challenging a will? 

The main grounds for contesting a will are: 

• That the testator lacked capacity and intention – Probably the most common basis on which wills are challenged in practice. Testamentary capacity involves an assessment of the testator’s ability to understand what needs to be considered when making a will. Testamentary intention concerns what the testator knew. Did he or she approve the terms of the will? Did the will reflect the testator’s genuine wishes? The testator should comprehend the estate’s value and be aware of who may potentially make a claim against the estate. Finally, the testator must not have any mental impairment or illness that could affect their ability to make decisions relating to the will. We discussed capacity and intention here. 
• The will was not executed properly – The formalities for executing a will must always be observed. This means the will should be in writing and signed by the testator (or by someone on their behalf if requested). There must be two witnesses present, and the testator must intend, by signing, to give effect to the terms of the will. 
• Lack of knowledge and approval – In addition to testamentary intention, anyone making a will must know and approve the contents of the specific will. 
• Undue influence – Can it be shown that the testator was pressurised or coerced into making the will or changing an existing will? There is a fine line here because it is possible to persuade the testator to make a particular bequest but as long as they still had genuine freedom of choice when making the will, a court will be reluctant to interfere. 
• Fraud or forgery – If a testator’s signature is forged the will is invalid. And if someone makes false representations about an intended beneficiary to encourage the testator to make or revoke gifts this may amount to fraud that could render the will invalid.  
   
• Claims under The Inheritance Act, 1975 – Strictly speaking these claims are not challenges to the validity of the will itself. Instead they are claims made by certain categories of individuals, chiefly spouses and children of the deceased who believe the will (or intestacy rules) don’t make adequate financial provision for them.

What are the key pre-action procedures when challenging a will? 

These are the principal steps to take to safeguard your claim. 

1. Enter a Caveat – By entering a caveat at the Probate Registry a block is put on a Grant of Probate/Letters of Administration for a period of six months. This enables full enquiries to be made about a possible will contest and gives a claimant time to consider the grounds on which to base their claim. Caveats are not appropriate in Inheritance Act claims.  

2. Consider contacting the witnesses to the will for confirmation that they complied with s9 of the Wills Act, 1837. 

3. Send a Larke v Nugus letter to the solicitor who drafted the will, requesting details of the circumstances surrounding the preparation and execution of the will. This request should always be tailored to the facts of the case in hand so that it stands the best chance of eliciting relevant, useful information to back up your will contest claim.  

4. Most Larke v Nugus letters receive professional and comprehensive responses from the solicitor who prepared the will. Law Society guidance on disputed wills (approved in the original Larke v Nugus case in 1979) was updated in 2023. It sets out clearly the legal basis on which the contents of a will must be disclosed and the consequences of failing to disclose full information when requested.  

Where a Larke v Nugus request is ignored or the response is inadequate, application may be made under s122 of the Senior Courts Act, 1981. This widely drawn power enables the High Court to order an individual to attend court to answer questions relating to the will and/or produce the will to the court. Applications under s122 can be made irrespective of whether legal proceedings are pending or not. The section that follows, s123, further empowers the court to subpoena someone who is believed to have a will to produce it.  

A s122 application was made in Addison & Anor v Niaz [2024] EWHC 3124 (Fam) (05 August 2024) ). There, following numerous requests to respond to a Larke v Nugus letter the drafting solicitor finally responded four months after the original request. The response was deemed unsatisfactory, and the solicitor was required to attend court to answer questions. Chief Master Shuman highlighted inconsistencies between the solicitor’s response to the Larke v Nugus request and her witness statement. These were only clarified during the solicitor’s direct evidence to the Chief Master, and in these circumstances the solicitor was ordered to pay the applicants’ costs. 

5. It may be possible in will contest claims to take advantage of the pre-action disclosure rules under the Civil Procedure Rules31.16. You must be able to show: 
   – The Respondent to the application is likely to be a party to future proceedings 
   – The applicant (potential claimant) is also likely to be party to the case 
   – In the anticipated proceedings the Respondent would be expected to disclose the documents sought under standard disclosure rules.  
   
   The courts should also be satisfied that pre-action disclosure would assist in disposing fairly of the anticipated proceedings, may assist the dispute to be resolved without proceedings, or would save costs.  
   
6. Request the deceased’s medical records. These should be available under s3(1)(f) Access to Health Records Act 1990. Access is given to the health records of a patient who has died to personal representatives and ‘any person who may have a claim arising out of the patient’s death’. 

As always, a considered analysis of the strengths and weaknesses of your claim should be made before instigating proceedings. Some or all of the steps we have listed above will serve to stress-test the viability of your case, and help you decide if it’s worth making a claim. 

Contact WillClaim Solicitors 

If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com. 

We provide details about our no win no fee arrangements at https://www.willclaim.com/no- win-no-fee/.