IS IT WORTH CHALLENGING A WILL?

20 November 2024 1:07 am

WillClaim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss your options when it comes to challenging a Will and consider which will dispute cases are we most likely to win.

Individuals and families are challenging wills and estates in record numbers. In early 2024 The Guardian reported that as many as 10,000 people in England and Wales are disputing wills every year. Reasons for the increase include an ageing population, the increase in the value of assets like family homes and a rise in second marriages and blended families (where some children are losing out on inheritance they believe they are entitled to). Many of these cases are settled early and only a fraction ever reach court. Here we discuss some of the hurdles you need to overcome before bringing a claim, we look at the chances of succeeding in court, and we list the steps to take when challenging the validity of a will or bringing a claim for financial provision under The Inheritance Act.

What are the hurdles and potential pitfalls in a will contest case?
At WillClaim Solicitors we will always be upfront and realistic with you about the strengths and weaknesses of your will dispute or inheritance claim. First and foremost this means being clear about the hurdles you might face and the perquisites for a successful claim. Some things to consider include:

Do you have something to gain? There’s little to be served in challenging a will simply to prove a point, and in fact a judge may refuse to hear your case if you don’t have an interest in the outcome. Are you a beneficiary of a will made before the one you say is invalid for example, or do you stand to inherit under the intestacy rules?

Does the estate have sufficient assets to satisfy your claim? Will dispute cases are expensive and even a no-win no-fee arrangement – assuming you can find a solicitor to take on the case – can carry a financial penalty if you lose your case. After the Event (ATE) legal insurance is unlikely to be available in circumstances where there are no assets to meet a claim

Did the deceased hold property jointly? Depending on the nature of the ownership it may not form part of the state, reducing the amount available for you to claim against. You should carry out appropriate legal checks to establish the actual value of the estate before starting any will contest

Is someone making a claim for financial provision under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975? If such a claim is successful it may mean that challenging the validity of the will is pointless. You might win a claim against the legal validity of a will but still receive nothing because the claimant under the Inheritance Act is entitled to the bulk of the estate

Are there other claims against the estate? Someone could claim that the property of the deceased is theirs because in the past it was promised to them and in reliance of this promise they incurred significant losses. They could perhaps have worked for nothing on a farm owned by the deceased or improved the deceased’s property at their expense.

What are the chances of success when challenging a will?
There are no guarantees in litigation – will contests are no exception. The no win no fee arrangement we have with clients operates as a natural filter. It ensures that our clients do not waste time in dealing with a contest over a will or estate where there is no or little chance of success.

When a potential client approaches us with a dispute about a will and/or estate, we won’t be in a position to test the facts straight away. Witnesses may be unavailable, and key paperwork may be missing. Nevertheless we will often seek to establish facts by investigating relevant properties belonging to the deceased to assess estate value. We can do this by using the government search facility for probate records (to obtain copies of the Grant and will) and search the Land Registry to establish how a property is owned and if or when it was sold.

It follows that when we decide to take on a will claim, while we will probably not have all the necessary information at hand to be certain of a win, we will be satisfied – from the information we do have – that the will contest claim can be won.

In practice the claim process itself is the most effective way of weeding out flawed or exaggerated claims before too much time or money is spent. Bringing a claim is also a useful way to gauge the strength of opposition we are going to face during the claim from potential defendants.

In our experience it will become clear within a matter of months at the most, whether a win is likely to be certain.

In our experience it will become clear within a matter of months at the most, whether a win is likely to be certain.
We only take on a will dispute case if we think we can win it. The factors we consider in making this assessment include:

Whether there is real value in the will dispute claim. Is the estate large enough to withstand a successful claim?

Do the facts of the case ring true?

Is there weighty, independent evidence to back up a claim that the will is invalid. For example are there medical notes showing the deceased had Alzheimer’s or dementia of sufficient severity at the time the will was made?

Is the case one where the courts have a large degree of discretion when reaching a decision, for example a claim under The Inheritance Act? If so, both sides shoulder a lot of risk and there is greater room for negotiating an out of court settlement.

If the claimant has nothing to lose (because he or she has no assets), a defendant with a lot to lose financially and facing unrecoverable legal costs may be prepared to settle the case to avoid the risks of a fully blown court hearing.

What evidence do you need to contest a will?
Remember that you can only start your claim once the person making the will has passed away. After deciding that you can contest a will you need substantial evidence to support your case. Bear in mind the following:

The best evidence is the independent evidence of professionals (for instance doctors who treated the person who made the will). Is there likely to be any?

Even better evidence is a telephone or other record of the deceased stating that he or she didn’t intend to make the will in the existing terms

Always keep key letters, cards, text and emails

If you bring an Inheritance Act claim because you have health issues and financial needs there is a time limit of six months to bring this claim from the date of the Grant of Probate, and you will also have to produce evidence of your health and financial circumstances. If you are an adult child, you should try and show that you have a ‘moral claim’. This could be based on unfulfilled promises made to you by the deceased in relation to his or her estate, or you could demonstrate that you provided care over many years to the deceased.

If you are contesting a will because you were promised a share of the deceased’s property in consequence of which you worked for very little on his or her farm for example, and/or contributed to cost of running or maintaining the deceased’s property, you will need to provide evidence of this.

Every case has elements which are positive and negative. At WillClaim we have to form a view on the balance of the facts before us. Please don’t be put off approaching us with your enquiry. It is always worth getting on touch for an initial chat.

Contact Us
If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask for more information about our no win no fee arrangements, then please do not hesitate to contact WillClaim Solicitors for a confidential no strings chat. You can also call us on 02033225103