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Challenging a Will: First Steps

Date Added 27.06.24

When contesting a will, the process can seem daunting, even if you firmly believe that the will of the deceased is invalid. But where should you start? This article provides you with a guide to the first steps when disputing a will, which will ensure you have a reasonable interest in challenging the will and you are fully prepared to do so.

What To Do If You Think a Will Is Invalid

If you have serious suspicions that a will may be invalid, it is important to take prompt action.

If a Grant of Probate or Letters of Administration (“Grant”) has not yet been obtained in the deceased’s estate, you may wish to consider entering a caveat with the Probate Registry, for a small fee, which temporarily prevents anyone with authority from obtaining a Grant and therefore from distributing the estate. Generally speaking, a caveat remains in place for 6-months and can be renewed in the month before expiry, allowing time for further investigations to be undertaken by you/your legal representative of the merits of any claim.

What To Do If You Cannot Obtain a Copy of the Will

If you do not hold a copy of the deceased’s will and cannot obtain a copy from family members, or the appointed executor(s), you may consider applying to the Probate Registry for a standing search, for a small fee. A standing search is a formal request to receive a copy of the Grant (available only once issued), along with the deceased’s will (if there is one). The search lasts for a period of 6-months and can be renewed, so long as is necessary.

Knowledge of the Current Will and Any Previous Wills

Another important consideration when disputing a will, is what your entitlement actually is to dispute the current will (known as legal standing). For example, if you sought to declare the deceased’s current will invalid, and the deceased had made a previous valid will, it is that previous will that would stand, if the current will could be successfully overturned. If there is no previous will, then the deceased’s estate would be distributed (on a successful challenge of the current will) as if the deceased had never made a will and died intestate. It is important therefore to consider what your interest would be under any previous will (i.e., are you a named beneficiary and of what amount) and/or whether you would have an interest in the deceased’s estate, if there is no previous will. If you do not have legal standing under a previous will or intestacy, you cannot challenge the validity of the current will.

What To Do If a Solicitor Was Involved in Preparing The Will

If the deceased’s will was prepared by a solicitor, you may consider making a Larke v Nugus enquiry of those solicitors. A Larke v Nugus request can be made by an individual who has serious concerns regarding the validity of the deceased’s will (and who would otherwise benefit if the current will were found invalid, see above) and wishes to obtain further information in connection with the circumstances surrounding the preparation and execution of the last will.

A Larke v Nugus request typically takes the form of a solicitor’s letter, asking various questions to the solicitor/will drafter of the last will. Such questions can include asking “how long the solicitor had known the deceased?” or “who was in attendance when the deceased’s instructions were taken?”.

Some firms may charge a reasonable fee for their time in preparing and responding to such a request, in addition to photocopying charges. Further, in some cases, where the will drafter is not also the executor, the consent of the appointed executor under the will is likely to be required, to disclose copy documents from the will file.

A Larke v Nugus request is a helpful tool in any will validity investigation and will hopefully provide an insight into the deceased’s decision making at the time the will was prepared and/or signed.

What To Do If You Believe There Was a Lack of Testamentary Incapacity

If you believe that the deceased’s will is invalid for lack of testamentary incapacity, the deceased’s medical records should be obtained to gain insight into the deceased’s mental and physical health at the time the will was prepared. Medical records can serve as a crucial piece of evidence to any will validity claim.

The Access to Health Records Act 1990 enables an individual to apply for a copy of a deceased’s medical records (for the relevant period) if they have a claim against the estate, or are an appointed executor of the estate. A fee may be charged for release of such records, which may also be redacted for third party data.

Value of the Estate

A final factor to consider, which is often overlooked, is the actual value of the Deceased’s estate, subject to the dispute. Litigation and court proceedings involves unavoidable costs and time. Therefore it is essential that you weigh up at the outset, the potential costs you could incur pursuing such a claim, as against the actual value of the estate you are seeking to claim against. Does the cost and risk warrant the reward? Obtaining a copy of the Grant from the Probate Registry is one way to gain an indication of the likely value of the estate.

Expert Contested Probate Solicitors – Talk to Tollers

If you believe that you have grounds to contest a willTalk to Tollers on 01604 258558. Our experienced contentious probate solicitors will be happy to discuss matters further.

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