7 Steps to Contesting a Will
Before issuing court proceedings, there is a procedure by which your solicitor will follow, in respect of a claim concerning contesting a Will.
- Instructions are taken from the client within the initial consultation, who has reason to believe the person who made the Will (the testator): lacked knowledge, mental capacity and approval of what the will contained or felt the testate was under undue influence to make the Will. The client may state that:
- Scepticism arose following or prior to death in connection with the potential defendants relationship with the testator.
- The defendant is an executor and/ or a beneficiary of the Will to an extent which is surprising.
- Relations have become difficult and stressed between parties after the death which has led to the seeking of legal advice.
- In order to discover if a Grant of Probate has been obtained, a standing search application is usually made. If it is found that no grant has been made by the Probate Registry, entering into a Caveat is considered as to prevent one being taken out. Generally, where a Grant has not been obtained and there is a dispute over the validity of a will, a Caveat can or should be entered. Currently, a Caveat costs £20 and a standing search is £6.
- If property is owned by the deceased, office copy entries are usually obtained from the Land Registry. This is to review who owns the property and to establish whether any kind of restriction against disposition is needed. When a Grant has been obtained by another party, it is often difficult to attain a restriction.
- A Larke-V-Nugus statement is requested. This statement is prepared by the solicitor who originally drafted the Will or witnessed its execution. This in part entails a request for a statement from the Will maker and a copy for the Will file, outlining his or her dealings with the testator during the Will drafting process.
- Medical records of the deceased can be obtained if necessary.
- If in the light of the above enquiries the solicitor advising believes that the potential claimant has a prima facie claim, the next step is for the claimant client to decide whether his solicitor should write a formal Letter of Claim to the opposing party and/or the deceased’s Executors setting out the basis of his claim, the remedy sought and usually an invitation to join in some form of Alternative Dispute Resolution (ADR) process such as mediation.
- Often a claimant would be well advised to suggest mediation at an early stage and certainly before any formal court proceedings are issued.
It is important to have and keep in mind in contested Will cases that the outcome is more often than not highly dependent upon the quality of the evidence that is laid before the Court. It therefore needs to be emphasised to a potential claimant that their case is only likely to be successful if they can put before the court good and compelling evidence. Furthermore, and crucially, it must be remembered that the burden of proof is one the claimant must discharge and not one that the defendant is usually faced with having to do so.
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