Challenging a Will – is it worth it? - The Law House Family Law Solicitors, London & Peterborough


Challenging a Will – is it worth it?

By in Wills, Trusts & Probate Category on October 18th, 2017

Be under no illusion if you are thinking about challenging a Will. Probate litigation (the name given for challenging Wills) can be costly and time consuming and it is not for the faint hearted. You have to ask yourself very early on “Who benefits if you challenge a Will and what are the consequences of a successful challenge?”

Grounds for contesting a Will

These are the 5 possible grounds for challenging a Will

  • lack of testamentary capacity
  • undue influence or coercion
  • lack of knowledge and approval
  • Wills Act 1837
  • and forgery and fraud.

What follows is a brief summary of the grounds available to you.

Lack of testamentary capacity

A person making a Will must be of “sound mind, memory and understanding” when making a will. In order to be considered as having the necessary and sufficient capacity the person making a Will.  The Will maker must be able to understand the content of his Will namely :

  • Understand the nature of his instructions in the Will and its effects;
  • Understand the extent of the property which he  owns at the date of making the Will and what he is giving away;
  • Be able to comprehend and appreciate the claims to which he ought to give effect i.e. would it be reasonable to consider certain people and not others;
  • And must not be affected by any “disorder of the mind” such as a recognised mental illness.
Undue influence or coercion – pushy family members?

One of the grounds for contesting a Will is that the person who made the Will was subjected pressure by another person and as a result of that pressure received more benefit from the Will than he otherwise would have? This pressure can take many forms not least physical violence, prolonged verbal bullying, or talking to that person in such as way that eventually leads to the person agreeing to the content of a Will to stop being endlessly nagged.  The question you have to ask is whether the pressure caused the Will maker to effectively sign a Will that did not reflect his true wishes.

Lack of knowledge and approval – did he know what he was  signing?

If you cannot prove undue influence but the circumstances around the execution of the Will look a little odd or suspicious, the Court must be satisfied that the testator (the Will maker) understood and approved the contents of his will. If the Will has been prepared and executed correctly then the Court will presume that the Will maker had the necessary capacity, knew and approved the Will he signed.

However, if the individual making the Will is:

  • deaf and/or dumb;
  • unable to speak or write or is paralysed;
  • blind or illiterate; or
  • alleged to have been signed by another person for the deceased at his discretion.

If any of the above apply the the responsibility falls on the person challenging the Will. He or she must prove that the testator had the necessary knowledge to understand the content of their Will. They must also probe that the testator approved the content.

Wills Act 1837 – Is the Will Valid?

A Will must be valid and in order for it to be considered a valid Will. The Will itself must:

  • in writing and signed by the Testator;
  • the Will write must have intended by his signature for the will to be valid;
  • the signature must be acknowledged by the Will writer in the presence of two or more witnesses present at the same time; and
  • each witness either signs the will

Forgery and fraud – Is it genuine or is it fake?

If you can prove that a Will has been forged or the person allegedly making the Will’s signature has been forged, the Will will be invalid. Fraud is a criminal act and is defined as “an intentional deception made for personal gain or to damage another individual”. If you can prove either deception or damage then the Will is invalid.

 Costs of contesting a will  – the bottom line

As said at the outset probate litigation can be costly, scarily so. It is not like normal litigation. There is a lot more investigative work to be done. It is extremely hard at the outset of such litigation to quantify the cost. Each case is different and until you understand the strength of your case it is hard to nail down costs. In some circumstances it will become cleary early on if the grounds for making a calim succeed or not Discussing fees is on a regular basis is vital.

Who pays the costs? – me or the estate?

In most cases, the payment of costs will follow the event, that is to say that the losing party will pay the winning party’s costs.  As with general litigation the usual principle is that costs are at the full discretion of the Court, however, the losing party will generally be ordered to pay the winning party’s costs in addition to their own. It is important to review the strength of a case at the early stages.

It is incorrect to assume that the costs in inheritance claims are automatically met by the estate. Although there are special circumstances where a Court may make an alternative Order:

  • If the person who made the Will or those persons interested in the residue of the estate are found to have caused the litigation then costs may be met by the estate; and
  • Where the Court finds that it was reasonable for there to be an investigation with regards to the Will, it may Order that the parties’ costs should be borne by those who respectively incurred them.

Where it can be proved that the  investigation was needed so as to establish the true position as a result of the Deceased’s conduct, costs can be paid from the Deceased’s Estate however. This is at the discretion of the Court.

You should not begin a claim believing that costs will automatically be paid from the Deceased’s Estate.  Before you begin you will need to reflect on your own financial position. What if the Court decides you will pay your own costs? What if Court also decides that you pay the costs of the other side defending the Will?

I am an Executor – what is my role?

As an executor you should remain neutral where a dispute arises in relation to an estate.  You must assist with the provision of information about the estate . Sometimes executors are approached with a request for medical records so that a claim can be assessed. The executor would be expected by court, to deal with that request.   Set fees are payable for copies of documents such as medical records, bank statements and sometimes share certificates. These expenses should be taken into consideration when assessing whether you are able to fund any potential claim.

If you would like to speak to a lawyer about a potential claim please contact Alberta Tevie on 020 3150 2525 or at atevie@thelawhouse.com