Should I contest the will?

When someone dies, their family understandably will expect their will to accurately record their wishes and provide for the family. However, where the will doesn’t properly reflect the deceased’s wishes, or where someone who thought they would inherit but does not, the deceased’s family can find themselves in a potential will dispute. Will disputes can be extremely stressful and time consuming at what is already an emotional time. 

This article provides insight on the grounds for contesting the validity of a will, the cost of contentious probate claims and the alternative claims available. It also provides advice on the first steps when there are concerns regarding the validity of a will. 

Grounds for contesting the validity of a will

There are various reasons why will disputes arise, including claims that the will is invalid. There are a number of ways to challenge the validity of a will, including that:

• The deceased lacked testamentary capacity.
• The deceased lacked knowledge and approval of the contents of the will.
• The deceased was subject to undue influence or fraud.
• The will was not  properly executed. 

Individuals who believe a will is invalid often feel very strongly about contesting the will and have fixed ideas about what should happen with the estate instead. However, it’s very important that their legal advisor considers whether contentious probate proceedings - which is the name given to claims challenging the validity of a will, rather than a claim under the Inheritance (Provision for Family and Dependants) Act 1975 - is the best course of action to take, taking into account a number of factors, including the client's overall objectives, the merits of the claim and the potential costs and cost recovery.

One particular point that should be considered right at the outset is that if the will is found to be invalid, the estate will be distributed in accordance with an earlier valid will, or if there is no earlier will, the intestacy rules. Before bringing a will validity claim, it’s therefore very important to consider the potential effect of the distribution of the estate should the claim be successful. 

The cost of contentious probate claims: my costs will be paid by the estate, right?

It’s exceptionally difficult to predict with any degree of certainty the precise financial costs of contesting a will. Much depends on the nature of the dispute, the number of parties involved and how protracted matters become. 

It’s also a common misconception that legal costs arising from probate litigation are automatically paid out of the deceased’s estate. The question of who is responsible for costs in a probate dispute is a complicated one and it can depend upon the party’s role and conduct in the proceedings.

Generally, executors who adopt a neutral stance and do whatever is necessary to assist the court in the proceedings can expect their costs to be paid from the estate. However parties who have a financial interest in the outcome of the litigation cannot make the same assumption.

For these parties, the normal rules relating to costs in civil litigation apply, and the usual position is that the losing party pays not only their own legal costs, but is also ordered to make a substantial contribution towards the winning party’s costs.  

There are however three exceptions to the normal costs rule in contentious probate proceedings. These are:

1. If the deceased or the residuary beneficiaries of the estate have been the cause of the litigation, then the court may order that the unsuccessful party’s costs are paid out of the estate.
2. Where the above cannot be said, but the circumstances reasonably justified an investigation into the validity of the will. In these cases the court can find that there should be no order for costs, so each party pays their own costs.
3. Where the person disputing the will does not wish to pursue their own claim but requires the validity of the will to be proven, they can rely upon the requirement CPR 57.75(b) by which the person may ‘give notice in his defence that he does not raise any positive case, but insists on the will being proven in solemn form and, for that purpose, will cross-examine the witnesses who attested the will’.  If a defendant uses this procedure the court ‘will not make an order for costs against him unless it considers there was no reasonable ground for opposing the will’.

The issue of funding and who is likely to be responsible for costs is a matter which should be considered before embarking upon expensive litigation. If a client is intending to rely upon any of the principles above, their actions should be kept under strict review.

Alternative claims

Contentious probate proceedings may not always be the best course of action for a disappointed beneficiary, and there may be a more suitable alternative. For example:

• A claim under the Inheritance (Provision for Family and Dependants) Act 1975 for ‘reasonable financial provision’, if the claimant is a spouse, child, cohabitee or dependant. 
• If lifetime promises have been made, and relied on to a person’s detriment a ‘proprietary estoppel’ claim may be worth exploring. 
• If the will doesn’t give effect to the testator's wishes because of a clerical error, or a failure to understand the testator's instructions, it might be possible to consider an application for ‘rectification’ under Section 20 of the Administration of Justice Act 1982. 

Finally, if an agreement can be reached with all the relevant parties, executing a deed of variation within two years of the date of death could be a good, cost-effective way of avoiding a dispute altogether.

Suggested first steps 

Where there are concerns regarding the validity of a will, it’s important that a caveat is entered as soon as possible to prevent the issue of the grant of probate. Time should then be spent gathering as much evidence as possible relating to the claim and complying with the Civil Procedure Rules Pre-Action Protocol, before embarking on any court proceedings.

Parties should always keep their eyes open to alternatives including alternative dispute resolution, which could possibly achieve the same or a similar result, more quickly and cost-effectively.

For further advice and information, please contact the wills and inheritance disputes team.