How to contest a will?

There is a strong awareness that a deceased’s wishes may be disputed even when the deceased left a will.There are several grounds to contest a will, including:

  1. lack of due execution;
  2. lack of testamentary capacity;
  3. lack of knowledge and approval;
  4. undue influence; and
  5. forgery/fraud.  

In addition to the above grounds, the Inheritance (Provision for Family and Dependents) Act 1975 allows certain categories of individuals to seek reasonable financial provision from the estate of the deceased.

The likely costs to contest a will

It is well known that any litigation is expensive and contesting a will is no different. If anything, inheritance claims can be more expensive than other forms of litigation due to the nature of the claim and the amount of work and investigation involved.  

Inheritance claims are a form of hostile litigation and the two general rules apply, namely:

  1. costs are in the discretion of the court; and
  2. the losing party may be ordered to pay the winning parties costs.

    It is often misconceived that costs in inheritance claims automatically come out of the estate. This is not necessarily true as in the first instance the general rule is that the unsuccessful party will pay the costs of the successful party. However, there are two long established exceptions to this general rule and they are:

    1. If the testator (person who made the will) or the persons interested in the residue of the estate have been the cause of the litigation, the costs of unsuccessfully opposing probate may be borne by the estate; and
    2. If the circumstances of the case are such that it was reasonable for there to be an investigation in regard to the will then the parties' costs should be borne by those who had incurred them.

    The above established exceptions come from the decision in the High Court cases of Spiers v English [1907] and these principles were later confirmed in the case of Costic v Chaplain [2007] and was recently applied in Re Ritchie [2009].  

    Accordingly, any party considering whether to contest a will should not assume that their costs will be borne by the Estate. As previously stated, inheritance claims can be more expensive than other forms of litigation and in some instances, the costs incurred may be in excess of the value of the Estate. Any party considering whether to contest a will should consider whether their costs will fall within the two exceptions to the general rule. Should the nature of their claim not fall within the two exceptions, then the party challenging the will should weigh the costs and risks involved.

    To proceed with an inheritance claim to a final hearing (which normally takes 12 to 18 months from when the claim is issued), costs may well be tens of thousands of pounds. Statistically 95%-plus of cases issued do not proceed to trial and the parties agree terms of settlement. It is therefore important to obtain legal advice from an early stage on the issue of costs in order that a party’s position can be protected. There are several ways in which such claims can be funded. To obtain more information concerning funding an inheritance claim or defending such a claim, please do not hesitate to contact Martin Oliver for a free initial no-obligation chat.

    About the author

    Martin Oliver Partner

    Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts. "He has a very good legal brain, an eye for detail and a tactical sixth sense ... " 'Chambers & Partners 2014