Contesting A Will: 10 Do’s and Don’ts

by Philip Siddons, Head of Humphreys & Co.’s Contentious Probate Practice [For full article go to 10 x Do’s & Don’ts in Contesting a Will

A surprising number of the people who come to us for advice about contesting a will have previously taken and acted on wrong advice from friends and people who meant well but who did not know what they were talking about.

In any will challenge, the Court will want detailed information about matters including:

• the Deceased’s financial affairs and physical and mental health at the time when the challenged will was prepared and executed;
• what the Deceased said to anyone else about the challenged will, before or after it was prepared and executed; and,
• the Deceased’s relations with their family and others around the time when the challenged will was prepared and executed.

The problem is that you as the potential Claimant may not know much about any of those aspects, particularly if as you suspect the main beneficiary under the challenged will took steps to isolate the Deceased from you. In addition, the executors and beneficiaries may not want to help you get that information.

The solution to that problem is that you can require the executors and beneficiaries to enable you to inspect the will file of the challenged will and have access to the Deceased’s medical records. It is certainly not impossible to challenge a will. From our experience, a good proportion of challenges succeed either at trial or by agreement before trial, and sometimes without the need to issue proceedings.

No one can promise you a will challenge without tears, but observing these dos and don’ts will help you through it:

DO look before you leap.  Understand what you stand to lose in money terms if your will challenge fails for any reason.

DO think about the price that you and your family may pay for contesting a will. Win or lose, you may lose contact forever with a sibling and your children may lose their cousins.

DO take legal advice. We at Humphreys & Co. can offer you the help and support you need.

DO understand clearly

• what are the chances of getting a “Win” result in the will challenge without issuing proceedings or you issue them, without a trial. They may not be able to tell you at the outset but at least you will be able to agree your priorities
• What would your solicitor think be a “Win” for you to receive (the whole estate? half the estate? any part of the estate plus your costs?) – you may not be so easily pleased!
• How much it will cost (and how long it will take) you to get to that point
• How much (in financial terms) a “Win” would help you. If the Deceased’s last previous valid will left you nothing, the Will Challenge may be a waste of time and money as well as stress and nervous energy
• How much you will have to pay the other side if you have to abandon the will challenge
• What are your chances of obtaining a “Win”

Not everyone has the same approach to risk.  Some are more concerned to avoid losing than to win the maximum.  There is no need for embarrassment about that. Sometimes it is simply not worth the risk and expense of contesting a will, however hurt you may be by its terms.

DO know your funding options – whether Pay As You Go or some form of No Win No Fee or No Win Reduced Fee arrangement.  Ask which would be best for you.  You may be surprised.  Sometimes Pay As You Go can be your best option. If you don’t get what you want, try elsewhere.

And here are the don’ts:

DON’T focus too much on what specific grounds for contesting a will apply to your case (you may think they all do, like diseases in a medical textbook) – just give your adviser the facts and you will be able to decide together which line to pursue.

DON’T forget to consider other options, if a will contest seem to you difficult or expensive. Firms like ours regularly help claimants make out their case for reasonable financial provision against the net estate brought under the Inheritance (Provision for Family and Dependants) Act 1975.

DON’T throw good money after bad. A case that seemed promising at the outset can look weaker when you see the other side’s evidence. “When the facts change, I change my mind. What do you do, Sir?” That famous quote, attributed by some to John Maynard Keynes, is a good guide of anyone contesting a will.

DON’T necessarily expect a judge to believe that you are telling the truth, even though you are. The discovery of a new document or an unexpected witness, or a witness whose evidence comes across badly, or a Judge who unexpectedly takes against one side’s case (or witnesses) can produce results that neither party could reasonably have expected at the outset.

DON’T just give up.  Many will challenges result in payments either out of Court or following a trial.  So it can be done.  In years to come, when you look back on (and possibly regret) the decision you will soon have to make whether or not to contest a will, it will be good to know that you researched it thoroughly before taking that decision.

• Philip Siddons is a partner at Humphreys & Co. and is a member of the Association of Contentious Trust and Probate Specialists. Paul Wong, a Singapore qualified Advocate and Solicitor, and member of the Chartered Institute of Arbitrators (UK) contributed to this article. 

CONTACT Philip Siddons at lawyers@humphreys.co.uk