Challenging the validity of a Will is a complex matter and will often result in a lengthy dispute that could include court proceedings. It is possible for a validity challenge to be permitted if the grounds for challenge are accepted by all beneficiaries of the Will. If all parties agree that the Will should be deemed invalid, then the will can be overturned by consent and the dispute can be resolved. However, this is rarely the case, and such disputes can result in a time-consuming dispute and sometimes litigation.
It is therefore very important to consider whether challenging a Will is the right decision for you.
Eligibility to challenge the validity of a Will
The first thing to consider is whether you are potentially eligible to pursue such a claim. Sometimes it can be easy to determine your eligibility and in other circumstances it can be more difficult.
When challenging the validity of a Will, you are asking for that Will to be set aside, meaning that the estate would be distributed in line with the former will. If there is no former Will, then the estate will be distributed in line with the rules of intestacy.
In order to be eligible to bring a claim, you must benefit from the Will being set aside i.e. you must receive a greater benefit from the former Will or rules of intestacy than under the terms of the Will that you are looking to set aside. If there is no former Will, a successful challenge would result in the estate being distributed in line with the rules of intestacy. In this instance, you must fall within one of the detailed categories and receive a greater benefit than under the terms of the Will being challenged.
If you do not stand to benefit from the Will being set aside, you do not have the necessary standing to challenge the validity of the Will.
If there was a former Will, but a copy is not available, it can be more difficult to consider your eligibility to pursue a claim.
The process of challenging a Will
The first step in considering a challenge to a Will is to carry out investigations. Such investigations are thorough and can take a significant period of time. Courts have adopted a robust approach to validity challenges in particular, as extensive evidence is required to successfully challenge the validity of a will. Most modern wills are professionally drafted and rebutting the assumption that the drafting solicitor acted appropriately under their instruction is difficult. The investigation stage will involve issuing a Larke v Nugus request wherein we will issue a request for the copy Will file from the solicitor who drafted the Will. Obtaining a copy of the will file allows us to consider the nature of the instruction and execution of the will and see if there are any elements of the file that raise concern.
Where there are concerns regarding mental capacity, medical records must often be reviewed, sometimes creating delays in obtaining and reviewing the same. The investigation stage is a key stage in your claim as it allows us to advise you upon your prospects of success.
Protecting your interests
If we believe that you have a potential claim to challenge the validity of the Will, and probate or letters of administration have not already been granted, we can assist you in entering a caveat against the estate. This will stop the grant of probate or letters of administration being granted and in turn, will stop the executors from being able to administer/distribute the estate.
A caveat can only be entered if a party intends to challenge the validity of the Will, it cannot be used for any other kind of claim such as a claim under the Inheritance (Provision for Family and Dependants) Act 1975. A caveat can remain in place until the dispute has been resolved, one way or another. However, a caveat should always be withdrawn if it is no longer appropriate. This can include when investigations conclude that the challenge to the Will is without merit and should not be pursued.
Is the potential gain proportionate to the cost?
The cost involved in challenging a Will can be significant and costs can accumulate quickly.
If the estate is modest, it is important to consider whether it is cost effective to pursue a challenge.
If you are unsuccessful in your challenge, you could find yourself not only responsible for your own costs, but you may become responsible for settling the opposition’s cost as well.
So as to manage costs and affordability, we make sure that client’s receive regular cost updates, to ensure that proportionality can continually be reassessed.
Is there a risk of jeopardising relationships?
As well as considering the cost involved in pursuing claims, it is also important to consider the potential effect the claim may have on other parties involved. The circumstances under which such a claim would arise, are distressing times for many people. The death of a loved one resulting in a dispute between family members is a difficult scenario to navigate and can cause tensions.
Some parties may object to the challenge being raised, others may be frustrated by the dispute delaying the administration of the estate and the distribution of assets. It is important to consider whether such family relations could cause further upset.
Limitation
When challenging the validity of a Will, you must bring a claim within 12 years post death. It can be done at any time within those 12 years post death, including after the grant of probate has been issued and the estate has been administered. However, once administration has been completed, it can be more difficult as the estate assets have already been distributed to the beneficiaries.
A claim under the Inheritance (Provision for Family and Dependants) Act 1975 must be brought within 6 months of the grant of probate or letters of administration being issued.
The decision to challenge a Will is not an easy one. The process can involve a variety of financial considerations as well as personal ones and any individual seeking to challenge a Will should ensure that they are committed to the process. However, we understand the importance of each individual’s position and will do everything we can to assist people with their claims.
If you think that you may want to challenge a Will, please get in touch with us and we will be happy to discuss your matter further. Contact us today on 0161 696 6178 to speak with our specialist solicitors.
Comments