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Posted 13 September 2018
by Martin Laver

What is a Disputed Will?

Glass on a desk

Simply put, a disputed will is any dispute around the will of someone who has died.

Sometimes there are problems with the will itself and sometimes people are unhappy with the contents of the will.

When someone dies having made a will, the executors (appointed by the will) will deal with the administration of the estate. This entails calling in all debts owed to the deceased such as bank accounts, shares and property, paying all debts owed by the deceased (for example funeral costs and mortgages) and then distributing what is left to the people or charities as requested in the will by the deceased.

There are limited grounds for disputing a will and the person who challenges the will generally has to prove one of 5 things.

What are the grounds for disputing a will?

A will can be disputed for the following reasons:

  • The will does not comply with the Wills Act 1837
  • The deceased was coerced into making the will (called undue influence)
  • The deceased did not have capacity to make a will
  • The deceased did not have knowledge and approval of the will.
  • The will is a forgery or fraud.

For more information on the grounds for disputing a will click here. 

In addition to these claims, someone may feel they should receive more from a person’s will and they could look at an Inheritance Act claim under the Inheritance (Provision for Family And Dependants) Act 1975. Sometimes this Act is abbreviated to IPFADA.

An Inheritance Act claims is only available to specific people in specific circumstances.

For more information on Inheritance Act claims, click here.

The Process

If you have concerns about the validity of a will, you should seek legal advice as soon as possible. It may be necessary to place a caveat on the estate if there are concerns that the estate will be distributed before the claim is resolved. A caveat prevents a will being put to probate and the executors dealing with the estate.

Once it is determined that there are or may be grounds to contest a will, the Executors and beneficiaries will need to be put on notice of the potential claim by way of a Letter Before Action. The purpose of this letter is to set out the basis of the claim. This must be done prior to issuing court proceedings as part of the Practice Direction on Pre-Action Conduct, which legal professionals are required to follow. The Executors and/or beneficiaries will have a limited time to respond to the claim before you can issue proceedings.

If the limitation period is fast approaching, it is possible to issue proceedings (known as protective proceedings) but the claim does not have to be served for four months. This allows time to prepare a full Letter Before Action and to obtain further information in support of the claim, or for the parties to try to seek resolution to the claim.

Larke v Nugus

A Larke v Nugus request is essentially requesting a statement from the solicitor or will writer who originally prepared the will or witnessed its execution together with the full will preparation file. A request for a Larke v Nugus statement may seek some or all of the following:

  • How long the solicitor or will writer knew the deceased;
  • The date the solicitor or will writer received instructions regarding the will from the deceased;
  • Copies of notes of all meetings, telephone calls and confirmation of when and where the meetings took place and who was in attendance;
  • How the instructions were provided;
  • Whether the deceased exhibited any signs of ill health, memory problems or lack of understanding or confusion;
  • Whether previous wills were discussed and whether departures from previous wills were discussed and the reasons for such a departure from earlier wills;
  • Who (apart from witnesses) was present when the deceased signed the will together with when, how and where this took place.

Mediation

Mediation can take place in many ways and while many wish to have their ‘day in court’, in reality, more claims are resolved through mediation than trial. More importantly, the Court encourages the parties to these types of claims to participate in mediation (preferably prior to issuing proceedings) and to make a genuine attempt to resolve the dispute.

Mediation can take place with Barristers, Solicitors or professional mediators. The mediations are often held at a neutral venue and the costs are usually shared equally by the parties. You should expect to participate in at least one mediation during the course of your claim. Failure to The Court can impose sanctions (by way of adverse costs orders) on parties who refuse to participate in mediation.

The Court process

If the matter cannot be resolved then it may be necessary to make a claim to the Court. This will involve preparing one or more witness statements and documents in support of your claim. Once the claim is submitted to the Court, service can be delayed for up to four months which can be beneficial if you are still in the early investigation and/or negotiation process.

The Court process can be a lengthy one and the time to conclude these types of claims is often between 1-2 years. Aside from the trial date itself, there will usually be an initial Case Management Conference (which will set deadlines for exchanging documents and witness statements and other procedural issues) and other hearings if additional disputed issues arise during the course of the matter.

If you require any advice regarding any matter similar to this, then please do not hesitate to get in touch with our experienced team of wills and probate solicitors on 01392 207020.

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About the author

Martin Laver

Partner and Solicitor

Partner in the commercial litigation team specialising in disputed trusts and Wills