Is contesting a Will ever successful? This is a common question asked by clients when facing a dispute over a will. Martin Oliver, Partner in our Contentious Probate team answers the question.
The main thing to keep in mind is that this isn't a straightforward questions and will all depend on the case. The role of the solicitor who has been instructed on the case is to collect as much information as possible at the start of the case so that they can inform their client within the first few weeks, or couple of months, on the prospect of success.
Inheritance (Provision for Family and Dependants) Act 1975 claims
When it comes to Inheritance (Provision for Family and Dependants) Act 1975 (Inheritance Act) claims, they do tend to settle without the need for a trial - only 2% to 3% will go to trial. You will usually find that the parties will come to a commercial decision, whether that is through lawyers, a without prejudice meeting or mediation. If these methods do not work, a claim will go all the way to trial but a client will be kept fully informed on their prospects and advised whether to go ahead.
How much am I entitled to?
This is completely dependent on the facts of the case. For example, when looking at Inheritance Act claims and reasonable financial provisions, this will depend on:
- how much has been left in the will;
- how much does that party require for their maintenance going forward; and
- If they are husband and wife, they are entitled to a sum equivalent to a deemed divorce test. This test is if they had got divorced the day before one of them died, how much monies would they get from the settlement? The starting position is usually 50% of the assets.
Other challenges to wills
If the will is being challenged for numerous reasons, for example lack of capacity, fraud, undue influence or that it has not been executed correctly, and they are not successful, you would go back at review previous wills the deceased had made to see if they are valid. If there are no previous wills, you would follow the rules of intestacy.
Although there's no guarantee that a case will be successful, your solicitor should weigh up the evidence of your case and the prospect of success to help guide you on the best route for your claim. Ultimately, it comes down to benefit analysis - is it worth the monies, time and effort that is put into the claim again what you are likely to recover?
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