Coping with a bereavement can be terribly hard. When it’s combined with a dispute over the deceased’s estate, life can become extremely challenging. Taking no action or doing the wrong thing can be expensive and stressful – it’s important not to panic and to get good advice.

Firstly, let’s clarify what we mean by ‘will dispute’. It’s a term which broadly covers 2 different areas of law:

If there is a will and someone argues that it isn’t valid; that there’s something wrong with it  –  this is ‘contentious probate’ also known as a ‘will validity challenge’.  These are tough cases to bring for the challenger, called the ‘claimant’. Most cases fail, as courts require compelling evidence that a will hasn’t been validly made. A claimant has to prove at least one of the following:

1. Lack of testamentary intention
2. Lack of due execution
3. Lack of testamentary capacity
4. Lack of knowledge and approval
5. Undue influence
6. Fraud and forgery

This is a complex and technical area of law and specialist advice is essential.

OR

If there is no will (someone dies ‘intestate’) or there’s a will; someone close to the deceased decides it doesn’t adequately provide for them – that person may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.  The Act allows certain individuals to bring a claim against a deceased’s estate if they believe that it fails to make “reasonable financial provision” for them.

So – a contentious probate claim assumes there is a will and it’s ‘dodgy’. But an Inheritance Act claimant doesn’t question the validity of the will, if there is one; they simply say that the estate must provide for them and hasn’t.

It is possible for a claimant to potentially bring both a contentious probate claim and an Inheritance Act claim, if there’s a will. But more commonly either one or other claim is brought.

What to do

If you are an executor of a will, and that is your only role (you are not a beneficiary of the estate) then you must remain neutral in any dispute. This can feel very hard, especially if you know the individuals affected by the dispute and you have strong opinions about the case. Nonetheless, you will be potentially criticised by the court and subject to financial penalties if you act in a partisan way.

You ought to be legally represented but your legal costs should be met by the estate at the end of the case and your costs should generally not be too high.

You will need to respond to reasonable requests for information about the estate from the claimant and may need to authorise disclosure of the will file if there is one, to the claimant (this is called a Larke v Nugus request).

If you are a beneficiary and your share of the estate is likely to be affected by the dispute, you will need legal advice as to whether to settle or fight. If you have only been left a relatively small bequest then you may not need a solicitor as the other parties may agree that you will receive your inheritance, come what may.

If you are an executor and a beneficiary, then you will need legal advice about both roles and in any correspondence, it should be made clear as to whether you are writing with your ‘executor’ hat on or your ‘beneficiary’ hat.

If you are one of a number of beneficiaries who are all on the same side, it may be cost effective for you to all instruct the same solicitor so long as none of you have, or is likely to have, a ‘conflict of interest’ with any of the others. But you don’t have to have the same solicitor.

At an early stage someone actively defending a will dispute claim should:

• Gather together relevant documents, eg any will, previous wills, death certificate
• Prepare a chronology of relevant dates
• Estimate the value of the estate
• Consider settlement; how much is the claim for? What will the costs of fighting the claim be?
• If you are asked for information by the claimant carefully consider whether or not to provide it. Taking an aggressive position may harden the claimant’s suspicions.

What not to do?

Don’t ignore a potential claim in the hope it will go away; especially if you have received a solicitor’s letter.

Don’t make an offer without legal advice; even if it is not accepted, your opponent knows you are willing to compromise and then won’t go away or accept a lower amount.

Don’t get mad; try to understand the claimant’s motivation and consider how they feel – what might a ‘win/win’ deal look like? Being hostile rarely helps the situation.

Don’t act too quickly  – sometimes a careful, thought through response can be far more effective than a hasty knee jerk reaction.

Most disputes can and should be resolved without going to court; but this is an area of law fraught with difficulty and expense for the unwary and extreme care should be taken when getting involved in will dispute litigation.

If you need legal help or advice, please contact our litigation team on our free phone o800 8 60 62 65.

Sarah Young – Director & Solicitor