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How to start contesting a will

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Posted by Martin Oliver on 09 April 2013

Martin Oliver - Contesting a Will Lawyer
Martin Oliver Partner

Can I contest a will?

If you think you have grounds to contest a will then it is important to act fast, preferably before a grant of probate is obtained. If you are contesting a will believing it to be invalid, you can lodge a caveat which will prevent any grant of probate from issuing.

Before issuing proceedings in the High Court and incurring substantial costs, you should consider various other options. Legal action can slow down the receipt of any inheritance and can be costly for all parties involved.

Although there is no specific protocol for contesting a will, good practice includes the following:

  • The early exchange of full information about the prospective legal claim.
  • This enables parties to avoid litigation by agreeing a settlement of the claim before the commencement of proceedings.
  • If litigation is inevitable, the above supports the efficient management of proceedings.

Initial stages when contesting a will: Larke v Nugus [2000]

The Law Society recommended, in 1959, that in some instances where a will prepared by a solicitor becomes the subject of a dispute, the solicitor should make available a statement of his evidence dealing with the execution of the will and the circumstances surrounding it.  

In the case of Larke v Nugus, which was in relation to the validity of a will, the deceased’s solicitor declined to produce a statement in accordance with the Law Society’s recommendation. As a result, a probate action ensued. Although it was held that the will was found to be valid, the Court of Appeal refused to order the unsuccessful party to pay the costs of contesting a will because the solicitor who had prepared the will refused to make information available at an early stage which could have prevented a full trial. The claimant’s costs were therefore ordered to be paid from the estate and reduced the amount available for the beneficiaries of the will. In his judgement, Brandon LJ stated that:

“… when there was litigation about a will, every effort should be made by the executor to avoid costly litigation if that can be avoided and, when there are circumstances of suspicion attending the execution and making of a will, one of the measures which can be taken is to give full and frank information to those who might have an interest in attacking the will, as to how the will came to be made.”

This practice was subsequently recommended at paragraph 24.02 of the Law Society’s Guide to the Professional Conduct of Solicitors, 7th edition.

Therefore when contesting a will, the first step is to make an application to the will draftsman for a Larke v Nugus statement requesting information such as how instructions were expressed by the deceased, whether the deceased showed any signs of confusion or loss of memory, the extent to which the deceased’s earlier will was discussed and attempts made to discuss departures from his earlier will, etc.

When providing a Larke v Nugus statement, the solicitor should not charge for time spent compiling the statement or documents although reasonable charges may be made for photocopying. Besides making an application for a Larke v Nugus statement, other evidence should also be looked at.

Looking at the will

It is important to consider how consistent the will is and whether it was handwritten. A handwritten will is likely to suggest that solicitors were not involved and therefore, the deceased may not have had the knowledge and approval or testamentary capacity when executing it. There could also be a suspicion whether the deceased was influenced in making such a will.

Other points to consider are the testator’s signature. If the signature is shaky or different from his previous signatures, it could indicate dementia or possibly forgery. Another point is whether there were previous wills.  If there were, then it is worth looking at patterns in the will and whether the last will showed any radical change which may infer lack of knowledge and approval, undue influence or lack of capacity.

Approaching the attesting witnesses

It is worth speaking to the attesting witnesses to discuss the deceased’s state of mind and health at the time of executing the will. Should the witnesses refuse to cooperate, an application may be made under section 122 of the Supreme Court Act 1981 for examination of a witness before the court.

Medical records and evidence

Pursuant to section 3 (1)(f) of the Access to Health Records Act 1990, an application for access to health records of the deceased may be made by the patient’s personal representative and any person who may have a claim arising out of the patient’s death. The medical records may suggest loss of capacity or mental or physical impairment. The deceased’s GP should also be approached in order to obtain details of the level of testamentary capacity the deceased had around the date when he gave instructions to prepare the will and when the will was executed. The GP should also be asked to comment on any medical conditions the deceased may have had and whether any treatment he was undergoing may have affected his mental state and susceptibility.

Further investigations

It may also be sensible to approach neighbours and other beneficiaries in the will who knew the deceased. Diaries, residential or nursing home records may also be a valuable source of information.

Upon obtaining the above information and evidence, a decision can then be made on how to proceed. Mediation is generally a sensible way forward in order to keep costs to a minimum. However, should the parties not agree to mediate, then an application can be made to the High Court pursuant to CPR Part 57 to start a claim. The commencement of a probate claim will usually prevent any grant of probate or letters of administration being made until the claim has been disposed of.

About the author

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

Martin Oliver

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

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