When a loved one dies, it is a difficult time for everyone. So when issues arise in relation to the Will and inheritance, tensions can run high. It is therefore very important to consider whether challenging a Will is the right decision for you.
Before you look to challenge a Will, we recommend that the following be carefully considered:
- Has a grant of probate already been issued?
- Has estate administration already commenced?
- Can a challenge be initiated within the legal time limits?
- If the Will was successfully challenged, would you benefit under the terms of a former Will?
- Are you eligible to pursue such a challenge?
- Is the financial cost of challenging the Will proportionate to the possible gain, if the challenge were successful?
- Is there a risk that challenging the Will could result in emotional distress or relationship breakdowns?
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.
If you wish to challenge a Will, we recommend that advice is sought at the earliest opportunity.
Eligibility to challenge the validity of a Will
In order to bring a claim to challenge the validity of a Will, you must have the necessary standing to be able to do so.
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 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.
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 and extensive evidence is required to successfully challenge the validity of a Will. The majority of modern Wills are professionally drafted and rebutting the assumption that the drafting solicitor acted appropriately under their instruction is difficult.
Where there are concerns regarding mental capacity, medical records must often be reviewed, creating further 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.
Some believe that costs incurred will be recoverable from the estate but this is rarely the case. 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.
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.