Challenging A Will
04 February 2010
There are many ways to challenge a Will or its effect on an estate. It may be that, instead of pursuing a claim that the Will is invalid, your claim should be addressed to a professional adviser who drafted the Will or gave tax advice etc (especially if a prior Will would then be effective which did not have acceptable terms or there is no Will at all). Broadly there are the following possible challenges you can consider:
Claims relating to whether the Will is valid:
- The Deceased did not have mental capacity to make the Will
- The Deceased did not know or approve the terms of the Will
- There was duress on the Deceased to make the Will
- The preparation and signing of the Will does not comply with the provisions of the Wills Act 1837
There could also be claims where the Will remains valid in whole or part:
- Negligence and/or breach of duty of a solicitor or other professional - e.g. tax liabilities, failure to secure a tax advantage, including or omitting beneficiaries etc.
- Claims in respect of property owned by the deceased
- Claims relating to the meaning of the words used in the Will or the omission of words
The facts will be different in each case.
Professional advice is essential, consider the following:
- What happens if you are successful and the Will is invalid? Is there an earlier Will which would be effective instead - if so what were its terms and what is the impact on tax? Do the "intestacy rules" which govern the division of assets where there is no Will apply? Is this a better outcome?
- The first step may be to obtain information and there are particular guidelines on obtaining information from the party who drafted a Will based on the case of Larke -v- Nugus.
- Professional negligence claims have their own Court "pre-action protocol" that needs to be complied with.
- Professionals are usually insured and so they may be in a better position to actually pay if you are successful.
- Claims against professionals can be taken in contract up to 6 years from the "date of the breach", and in negligence up to 6 years from the "date of damage". Memories fade and documents get lost so a claim should be made as soon as possible and advice taken about the deadlines.
- There is an obligation to mitigate your losses - that is to take reasonable steps to keep the amount you lose to a minimum. There may be remedial action you should take.
- The costs of successful Court proceedings could be ordered to be paid out of the Estate by the Court. However the Court can make other orders (such as for hopeless or misconceived claims). It is possible for the Estate to be depleted by legal costs.
- There are many options available to fund litigation, if it is going to be costly:
There are alternatives to contentious proceedings:
- "After The Event" insurance
- Conditional Fee Agreements (in appropriate cases)
- Legal expenses cover via a home contents insurance policy
- Go to Court ‘by agreement` with the executors/beneficiaries to get clarification of the legal position
- Mediation can maintain family relationships and provide creative tax-efficient results more cost-effectively than litigation A separate fact sheet is available on the prospect of making a claim for an increased inheritance under the Inheritance (Provision for Family and Dependents) Act 1975, which can be made where a Will is valid and there has been no negligence etc, but you have not received "reasonable financial provision".
Clarkslegal, specialist Dispute Resolution lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Dispute Resolution matter please contact Clarkslegal's dispute resolution team by email at firstname.lastname@example.org by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
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