When faced with a disputed will, there are a number of important points to bear in mind before you decide whether or not to challenge a will.
- Think carefully about the consequences of challenging a will
If you are considering challenging the validity of a will, it is vital at the outset to consider if any benefit would be derived from an order declaring the will is invalid.
If the court declares that a will is invalid, the last previous valid will takes effect. If there is no previous valid will in existence, the estate would be distributed in accordance with the intestacy rules.Clearly, there is no point spending costs proving a will is invalid if no (significant) gain would be obtained from doing so.
- Understand the importance of a Larke v Nugus statement
If it is alleged that there are suspicious circumstances surrounding the making of a will, it is important at the outset to obtain evidence of those circumstances.
If the will was professionally drafted, you can contact the solicitor and ask for the details. Client confidentiality is not an issue. The request is for a Larke v Nugus statement.
In 1959, the Law Society issued guidance stating that there is an obligation on a solicitor who prepares a will to provide a statement relating to its execution and the circumstances relating to its preparation, regardless of client confidentiality. This was confirmed by the Court of Appeal case of Larke v Nugus (1979).
- Obtain copies of the deceased’s medical records
If it is alleged that the will is invalid on the ground that the deceased did not have capacity, it is important to obtain copies of the deceased’s medical records. The best procedure is to make a joint approach with the executors for the records.
Once the medical records are obtained, it is often useful to obtain an expert’s report on whether the deceased had capacity.
- Do not delay in entering a caveat
A caveat prevents a grant of probate from being issued. Caveats are entered where it is doubted that the last will of the deceased is valid or the person taking out the grant is suitable.
It is imperative to act quickly in lodging a caveat if the validity of the will is disputed because once it is lodged it provides an important tactical advantage as no grant can be issued until the caveat is removed. If a caveat is not entered and a grant of representation is issued, it would be necessary to obtain an order for revocation of the grant. This can be costly and assets may have already been distributed.
A caveat should not be entered when you wish to bring an Inheritance Act Claim.
- Be aware that there are special considerations where a claim involves minors
Where minors are involved, a settlement of a claim needs to be approved by the court. The application should be supported by the legal merits of the settlement and also the instructions on which it was based. The application will be heard by a District Judge or Master.
It is also important to note that proceedings can only be brought or defended on behalf of a minor through a litigation friend.
- Be open to the use of Mediation
Mediation is likely to be more cost effective and quicker than issuing court proceedings. It also provides the opportunity for the parties to obtain certainty in the results and is particularly effective where the parties have a continuing relationship (which is often the case in contentious probate disputes).
The courts also strongly encourage mediation and a failure to mediate may have a bearing on the award of costs.
- Be aware of the limitation periods
Claims to a share in an estate must be brought within 12 years from the date at which the right of action starts. This is shortened to 6 years for recovery of arrears of interest payable in respect of a legacy.
Claims for breach of trust must be brought within 6 years from the date at which the right of action accrues.
Paul Davis is a Solicitor at BHW Solicitors in Leicester and is an expert on contentious probate matters. Paul can be contacted on 0116 281 6231 or by email at firstname.lastname@example.org.