There are many reasons why a person might choose to challenge a will. B P Collins’ contentious probate team explores the steps that usually need to be taken to make a claim.
The most common claims are:
- Claims for provision from an estate under the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act claims”). These are claims by spouses or people who were being maintained by the deceased where reasonable provision has not been made for them either under the terms of a will or under the intestacy rules; and
- Claims relating to the validity of a will. There are many reasons why a will might be invalid, including that the deceased did not have mental capacity to make a will, that the will is a forgery, that the deceased did not understand their estate or the document they were signing (want of knowledge and approval), that the deceased had revoked the will in question, that the will was not validly signed, or that the deceased was unduly influenced or pressured into making the will.
The procedure for these claims might differ slightly, depending on the facts of the case. However, in most cases the usual steps to be taken will include:
Step 1 – Consider lodging a caveat
A caveat prevents a grant of probate being obtained. You would usually only lodge a caveat where the validity of the will is in dispute. Claims under the 1975 Act are not a reason to lodge a caveat or to prevent a grant being obtained.
If you are unsure whether you should lodge a caveat, a specialist contentious probate solicitor will be able to advise you.
Step 2 – Investigate your claim
The next step would be to gather evidence about your claim. The evidence or information that you might need will vary. For example, if your claim is that the deceased lacked mental capacity to make a will (known as testamentary capacity) you would usually obtain copies of their medical records. You may also make a Larke v Nugus request, which is a request for information made to a person who prepared a will. This will provide you with information concerning the deceased’s instructions about their will and the circumstances surrounding both the giving of instructions and execution (signing) of the will.
Step 3 – Letter of claim
The next stage is to write to the other side under the pre-action protocols. This “pre-action correspondence” is entered into before a claim is issued, so that the parties can provide each other with information about their claim/position and exchange key documents.
The aim of pre-action correspondence is to seek to identify the issues in dispute and resolve matters where possible without recourse to the court.
Step 4 – Engage in negotiations
Generally, the court expects parties to seek to resolve their disputes before court proceedings are issued. “Pre-action” is often an important time to engage in settlement discussions. Parties might consider a variety of “alternative dispute resolution” methods at this stage, including settlement meetings or mediation.
Step 5 – Issue your claim
If matters cannot be resolved between the parties, the next step might be to issue proceedings at court. Court proceedings should be issued as a last resort but are sometimes unavoidable.
The rules surrounding issuing proceedings, including the information to be included, and where your claim must be issued are complex. Further, there can some complexities surrounding the timing of issue. For example, in 1975 Act claims, you have only six months from the date the grant of probate was issued to lodge your claim. If you miss this deadline, you may face sanctions including having to pay some of the other parties’ costs, not being able to recover some of your own costs, or even being prevented from bringing your claim altogether.
Once proceedings have been issued, the parties still have an opportunity to seek to resolve their dispute. If that is not possible, the court will determine the claim at a trial, at the end of the court process.
Summary
When challenging a will there are some initial steps which should be taken prior to issuing proceedings, to protect the parties’ positions, gather information and try to resolve the dispute. Whilst many cases settle at the “pre-action” stage, court proceedings might be needed to help narrow issues in dispute or to determine the underlying claim. A specialist contentious probate solicitor can guide you through the procedure from the initial investigatory steps, to when and how to issue your claim.
If you require advice or guidance regarding claims to challenge a will, please contact the contentious probate team at B P Collins by emailing enquiries@bpcollins.co.uk or calling 01753 889995.
