Contested Will

Definition and Context

A contested will occurs when someone with a vested interest, such as a beneficiary or potential beneficiary, disputes the validity of a will or its interpretation. This can happen for reasons such as doubts about the will’s authenticity, questions about the testator’s mental capacity, or allegations of undue influence. Contesting a will can be complicated and can involve navigating emotionally charged family dynamics, requiring a deep understanding of probate law.

Grounds for Contesting a Will

Several grounds can form the basis for contesting a will, including:

1. Lack of Testamentary Capacity: The testator must have been of sound mind when making the will. This means they must have understood the nature of the act, the extent of their estate, and the claims of those who might expect to benefit. Evidence of mental incapacity, such as medical records or witness statements, can be pivotal in such cases.
2. Lack of Due Execution: For a will to be valid, it must comply with legal formalities. In the UK, this typically means the will must be in writing, signed by the testator, and witnessed by at least two independent witnesses who are present at the same time.
3. Undue Influence: A will may be contested if it is believed that the testator was coerced or unduly influenced by another person into making or altering their will in a way that does not reflect their true intentions. This can be challenging to prove and often requires substantial evidence, such as witness testimony or documentation.
4. Fraud or Forgery: If there are suspicions that the will was forged or that the testator was deceived into signing it, the will can be contested on the grounds of fraud. Handwriting experts and forensic evidence may be employed to support such claims.
5. Lack of Knowledge and Approval: The testator must have known and approved the will’s contents. If it can be shown that the testator did not fully understand or was misled about its provisions, the will may be contested.
6. Rectification and Construction Claims: These claims arise when the will’s wording is ambiguous or error, leading to disputes over its interpretation. Courts can be asked to rectify or interpret the will to reflect the testator’s true intentions.

Legal Framework

The Role of the Courts

The Family Division of the High Court typically handles contested will cases in the UK, though some matters may be heard in county courts. The court’s primary objective is to determine the will’s validity and ensure the testator’s true intentions are honoured.

Key Legislation

Several pieces of legislation govern contested wills in the UK, including:

• The Wills Act 1837: This Act sets out the formal requirements for making a valid will, including the necessity for writing, signing, and witnessing.
• The Administration of Justice Act 1982: This Act includes provisions for rectifying wills that fail to carry out the testator’s intentions due to clerical error or misunderstanding.
• The Inheritance (Provision for Family and Dependants) Act 1975: This Act allows certain family members and dependents to apply for reasonable financial provision if they believe the will does not adequately provide for them.

Legal Principles

1. Testamentary Freedom: In the UK, individuals have the right to distribute their estate as they see fit. However, this freedom is not absolute and can be challenged under specific circumstances, such as those outlined above.
2. Burden of Proof: The burden of proof generally lies with the party contesting the will. They must provide sufficient evidence to support their claims, whether it concerns testamentary capacity, undue influence, or any other grounds.

Procedural Aspects

Initial Steps

Contesting a will involves several procedural steps, including:

1. Seeking Legal Advice: It is crucial to seek specialist legal advice early in the process to understand the merits of the case and the likelihood of success. Solicitors can also help gather the necessary evidence and navigate the legal complexities.
2. Lodging a Caveat: A caveat can be lodged with the Probate Registry to prevent a grant of probate from being issued. This temporary measure allows the contesting party time to investigate and gather evidence without the estate being distributed.
3. Pre-Action Protocol: Before initiating court proceedings, parties are encouraged to follow the pre-action protocol, which involves exchanging information and attempting to resolve the dispute through negotiation or mediation.

Court Proceedings

Formal court proceedings may be necessary if the dispute cannot be resolved through negotiation. This involves:

1. Issuing a Claim: The contesting party (claimant) must issue a claim form and supporting documents outlining their grounds for contesting the will.
2. Defence: The estate executor or other interested parties (defendants) will file a defence, responding to the claims and providing their evidence.
3. Disclosure and Evidence: Both parties must disclose relevant documents and evidence. This can include medical records, witness statements, and expert reports.
4. Hearing: The case will be heard by a judge, who will consider the evidence and arguments presented by both sides. The judge will then decide whether the will is valid and provide any necessary remedies.

Alternative Dispute Resolution

Mediation and other forms of alternative dispute resolution (ADR) can be effective in resolving contested will cases. Mediation involves a neutral third party who facilitates discussions between the parties to help them reach a mutually acceptable agreement. ADR can save time, reduce costs, and minimise the emotional strain of litigation.

Practical Considerations

Gathering Evidence

Effective evidence-gathering is crucial in contested will cases. This can include:

• Medical Evidence: Medical records and expert opinions can be critical in cases involving testamentary capacity or undue influence.
• Witness Statements: Statements from individuals who witnessed the will’s signing or who have relevant information about the testator’s state of mind and circumstances can be pivotal.
• Documentary Evidence: Emails, letters, and other documents can help establish the testator’s intentions and any potential undue influence.

Costs and Funding

Contesting a will can be costly, including legal, court, and expert witness fees. It is essential to consider the potential costs and explore funding options, such as:

• Conditional Fee Agreements (CFAs): Also known as “no win, no fee” agreements, CFAs can provide financial relief by deferring legal fees until the case is resolved.
• Legal Expenses Insurance: Some individuals may have insurance policies that cover legal expenses, which can help manage the costs of contesting a will.
• Third-Party Funding: In some cases, third-party funders may agree to finance the litigation in exchange for a share of the proceeds if the case is successful.

Emotional and Family Dynamics

Contested will cases can exacerbate family tensions and emotional stress. It is essential to approach such disputes with sensitivity and an understanding of the broader family dynamics. Effective communication and seeking mediation or counselling can help manage conflicts and promote a more amicable resolution.

Conclusion

Contested wills are a complex area of probate law that requires a deep understanding of legal principles, procedural rules, and family dynamics.

At DLS Solicitors, we are dedicated to offering comprehensive and compassionate legal support to our clients throughout the process. Whether you are thinking about contesting a will or defending against a contest, our team of experienced solicitors can lead you through each step, ensuring that your interests are protected and the best possible outcome is achieved.

Individuals can approach contested will disputes with greater confidence and clarity by understanding the grounds for contesting a will, navigating the legal framework, and considering practical aspects such as evidence gathering and costs. Our ultimate goal is to uphold the testator’s true intentions, safeguard the rights of beneficiaries, and ensure fair and just outcomes in every case.