Contesting a will

Whether you’re contesting a will or defending a will claim, our expert team of solicitors can help.

 

For Individuals | Private Wealth | Grounds for Contesting a Will - An Introduction

Grounds for Contesting a Will - An Introduction

 

 

Key contact

Roman is a partner and head of the contested wills, trusts and estates team. He advises across the whole spectrum of private client litigation, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

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Lack of testamentary capacity
 
For Individuals | Private Wealth | Grounds for Contesting a Will - Lack of Testamentary Capacity

Grounds for Contesting A Will - Lack of Testamentary Capacity

For a person to make a valid will they must be of sound mind. The legal test is set down in the 1870 case of Banks v Goodfellow which states that, for a will to be valid, a person must:

  • understand that they are making a will and the effect of that will;
  • know the nature and value of their estate;
  • understand the consequences of including and excluding certain people under their will; and,
  • not be suffering from any ‘disorder of mind’ which may influence their views, “pervert their sense of right” or “poison their affections”. 

If one or more of the above applies then the will might be invalid.

Although the law has developed since Banks v Goodfellow, the basic principles remain the same. In a will dispute, any of the above concerns would be the starting point for contesting a will on the grounds of lack of testamentary capacity.

You can find out more in the video above.

Lack of due execution
 
For Individuals | Private Wealth | Grounds for Contesting a Will - Lack of Proper Formalities

Grounds for Contesting a Will - Lack of Proper Formalities

For a will to be valid in England and Wales it must meet a number of strict requirements set out in section 9 Wills Act 1837. This states that:

  • a will must be in writing (subject to some exceptions for soldiers, seamen and those in active military service, known as ‘privileged wills’) and signed by the person making the will (or someone else in their presence, who has been directed to do so by them);
  • it must appear that the person making the will intended by their signature to give effect to the will;
  • the person making the will must sign the will in the presence of at least two witnesses, present at the same time; and
  • each witness must either attest and sign the will or acknowledge the signature in the presence of the person making the will, but not necessarily in the presence of any other witness.

A failure of any one of these strict points may render a will invalid.

There are also rules about who can and cannot witness a will.

You can find out more in the video above.

Lack of knowledge and approval
 
For Individuals | Private Wealth | Grounds for Contesting A Will - Lack of Knowledge and Approval

Grounds for Contesting A Will - Lack of Knowledge and Approval

A person must have knowledge of, and approve, the content of their will i.e. they must know that they’re signing a will and approve what it says.

If it can be shown that the person making the will wasn’t aware of the content of their will or that there were suspicious circumstances then it might be possible to contest a will on the basis of a lack of knowledge and approval, even if the will appears to be validly executed and the individual had mental capacity. An example might be where there’s a substantial gift in the will to a person who helped prepare it or where the will differs to the person's known wishes.

You can find out more in the video above.

 

For Individuals | Private Wealth | Grounds for Contesting a Will - Lack of Testamentary Capacity

Grounds for Contesting A Will - Lack of Testamentary Capacity

For a person to make a valid will they must be of sound mind. The legal test is set down in the 1870 case of Banks v Goodfellow which states that, for a will to be valid, a person must:

  • understand that they are making a will and the effect of that will;
  • know the nature and value of their estate;
  • understand the consequences of including and excluding certain people under their will; and,
  • not be suffering from any ‘disorder of mind’ which may influence their views, “pervert their sense of right” or “poison their affections”. 

If one or more of the above applies then the will might be invalid.

Although the law has developed since Banks v Goodfellow, the basic principles remain the same. In a will dispute, any of the above concerns would be the starting point for contesting a will on the grounds of lack of testamentary capacity.

You can find out more in the video above.

For Individuals | Private Wealth | Grounds for Contesting a Will - Lack of Proper Formalities

Grounds for Contesting a Will - Lack of Proper Formalities

For a will to be valid in England and Wales it must meet a number of strict requirements set out in section 9 Wills Act 1837. This states that:

  • a will must be in writing (subject to some exceptions for soldiers, seamen and those in active military service, known as ‘privileged wills’) and signed by the person making the will (or someone else in their presence, who has been directed to do so by them);
  • it must appear that the person making the will intended by their signature to give effect to the will;
  • the person making the will must sign the will in the presence of at least two witnesses, present at the same time; and
  • each witness must either attest and sign the will or acknowledge the signature in the presence of the person making the will, but not necessarily in the presence of any other witness.

A failure of any one of these strict points may render a will invalid.

There are also rules about who can and cannot witness a will.

You can find out more in the video above.

For Individuals | Private Wealth | Grounds for Contesting A Will - Lack of Knowledge and Approval

Grounds for Contesting A Will - Lack of Knowledge and Approval

A person must have knowledge of, and approve, the content of their will i.e. they must know that they’re signing a will and approve what it says.

If it can be shown that the person making the will wasn’t aware of the content of their will or that there were suspicious circumstances then it might be possible to contest a will on the basis of a lack of knowledge and approval, even if the will appears to be validly executed and the individual had mental capacity. An example might be where there’s a substantial gift in the will to a person who helped prepare it or where the will differs to the person's known wishes.

You can find out more in the video above.

 

Our experience in contesting wills

Hugh James successful in contesting a will for undue influence

Matthew Evans acted for the successful claimant in the leading case involving contesting a will for undue influence of Re Edwards [2007] EWHC 1119 (Ch).  The claimant, John Edwards, contested the will of his late mother, Winifred Victoria Edwards, which left the whole of her estate to her other son, Terry.  John’s claim was that Terry had deliberately poisoned his mother’s mind by making untruthful accusations against John and his wife, Carol, with the effect that their mother’s free will was “overborne” such that she changed her will to favour Terry.

The High Court found in favour of John and held that the will should be set aside for undue influence, specifically on the basis of “fraudulent calumny”, a type of undue influence which involves one person “poisoning” the mind of another in the hope of them changing their will to exclude another person.

This case remains one of the leading cases on contesting a will for undue influence, specifically, fraudulent calumny.

Hugh James settles claims regarding lack of due execution, fraud, lack of testamentary capacity, lack of knowledge and approval and undue influence

 Hugh James acted for a claimant who was contesting her late uncle’s last four wills on the basis that:

  1. three of the wills had not been validly signed and witnessed in accordance with section 9 Wills Act 1837; and
  2. the other will was made at a time when the deceased had been extremely vulnerable and therefore susceptible to the influence of others.

During his lifetime the deceased, an elderly gentleman, had invested in a number of questionable investments involving rare metals and wine portfolios and soon became the target of numerous scams.  He was befriended by one of the employees of one of the wine investment companies who went under a pseudonym and, over the course of a number of months, his investments steadily increased as did apparent gifts to the employee in his wills.

After detailed investigations and robust correspondence we were successful in having the gift to the employee set aside and we were also able to achieve an excellent result for our client at mediation against another beneficiary who had sought to secure a significant gift under that same will.

Hugh James successfully defends attempt to challenge will

In addition to successfully contesting wills, we pride ourselves on robustly defending will claims. In a recent claim we acted for the daughter of the deceased who had left her entire estate to our client.

Our client’s half-sister sought to contest the will on the basis that the deceased lacked testamentary capacity and knowledge and approval and entered a caveat in an attempt to block the grant of probate.

It was clear from the outset that the claim had no merit but the half-sister sought to use the caveat as leverage in the hope of achieving a pay-out.

We therefore issued a claim to “prove” the last will and the half-sister immediately agreed to withdraw her challenge. 

Hugh James achieves settlement in lost will claim

During his last years the deceased was bed-bound and totally reliant on the support of carers. His will (which was homemade) couldn’t be found after he died.

The legal dispute focused on the reasons why the will had been lost. If the will was deliberately destroyed by the deceased with the intention of revoking it, then it wouldn’t have effect, and the estate would have passed on the basis of the intestacy rules, the rules which apply where there is no valid will. On the other hand, if the will was genuinely ‘lost’, or destroyed by mistake, then it would still have taken effect.

Evidence was scarce, and it became clear that if the matter reached trial the court was going to have to decide which event was more likely, based on the individual circumstances.

We acted for a company who represented all of the intestacy beneficiaries. The opponents (the executors and beneficiaries under the lost will) argued that the will had most likely been accidentally destroyed by a third party.

We were able to negotiate a favourable settlement for the intestacy beneficiaries which avoided the costs and risk of trial.

 

 

Your questions answered

Do you offer free consultations?
 

Yes. We offer a free 20 minute telephone consultation.

Do you offer “no win, no fee” agreements?
 

In many cases we’re able to offer a range of flexible pricing options including “no win, no fee” agreements, fixed fees and deferred payment arrangements depending on each case.

Some cases may also be suitable for “After the Event” insurance funding which provide cover for the cost of disbursements such as court and expert fees as well as protecting you from any potential adverse costs order.

Contact us now to find out more.

How much am I entitled to?
 

If you are successful in contesting a will then the terms of any earlier, valid will would usually take effect. If there is no earlier will then the estate is distributed in accordance with rules set out by law, known as the intestacy rules.

As such, the starting point is to determine what you stand to inherit if you are successful in contesting a will.

In many cases it’s also possible to negotiate a settlement which avoids the costs and risks of proceeding to trial.

How quickly will my claim to contest a will be dealt with?
 

Each case is unique and so how quickly your case might be resolved depends on the particular circumstances. However, with one of the largest contested wills teams in the UK with over 50 years’ experience in contesting wills, and with recognised leaders in the field of contesting wills, you can rest assured that your case is in good hands and that we’ll work with you to resolve your claim as quickly as possible.

Am I eligible to contest a will?
 

Anyone who is likely to benefit from an earlier will or on intestacy (where there is no earlier will) is able to contest a will.

If property is given away in a will, which was either gifted or promised to you during that person’s lifetime, you may also be able to challenge this.

If you’ve been left out of a will or didn’t inherit as much as you had expected then you may also be eligible to bring a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

 

 

I was left something in a will but due to an error I haven’t been able to inherit it, can I claim?
 

If you were meant to benefit under a will but, due to a failing by a professional preparing the will, didn’t, you may be able to make a professional negligence claim.

What are my chances of contesting a will or defending a will dispute?
 

Each case is different but our experience in this area means that we can advise if you have a possible claim to contest a will or if you need to defend a claim to dispute a will.

We offer free, no-obligation consultations and flexible pricing options, tailored to your needs.

How much will it cost to contest a will?
 

Most claims involving contesting a will are resolved without the need for court proceedings. Of those cases which do proceed to trial, the general rule is that the losing party pays the majority of the winning party’s costs.

Each case is different and our experienced solicitors have a strong track record of achieving excellent results for our clients and providing frank, no-nonsense advice.

In many cases we’re also able to offer tailored pricing options. We pride ourselves on the service we provide to our clients and back this up with service level guarantees; if you feel that the service you’ve received has fallen short then we’ll offer a discount on our fees, no strings attached.

Is my will dispute suitable for mediation?
 

Mediation is a form of dispute resolution in which an independent person, known as a mediator, is appointed to try to broker a deal usually on a ‘without prejudice’ basis so anything discussed at mediation can’t be disclosed to the court.

The usual format involves the parties attending a mediation with each “side” having their own, private room. The mediator’s job is then to work with the you and your lawyer to try to achieve a positive settlement.

Although not suitable for every case, in our experience mediations do have a high success rate. Our experience and knowledge of contesting wills means that we’re well placed to act in mediations and are proud to have surpassed our clients’ expectations in achieving positive settlements.

How can I stop a will from going to probate?
 

If you’re considering contesting a will, the first step is usually to enter what is known as a “caveat”. This is a document which prevents a person from obtaining probate of the will you are looking to contest.

Unless the caveat is removed by agreement or is “warned off” by the person seeking to put the will to probate, it’s necessary to renew the caveat every six months.

A caveat is often a very useful tactical first step in contesting a will.

How can I get a copy of a will or probate?
 

If a will has already been put to probate then it becomes a public document. Similarly a grant of probate is a public document.

In both cases, these are available online on the Government website here.

A will is ambiguous, unclear or doesn’t reflect the person’s wishes. What can I do?
 

Assuming it’s not possible to reach unanimous agreement with all potentially affected parties, you may need to apply to court to ask it to construe the terms of the will or to have it rectified.

We have acted both for individuals and professionals in applications to rectify wills and in will constructions claims.

See our section above on rectification and construction of wills for more information.

What is a Larke v Nugus statement or Larke v Nugus letter?
 

A Larke v Nugus statement is an informal name for a statement from a will writer regarding the circumstances surrounding the preparation of a will which is being contested. Its name comes from a 1979 case in which the court confirmed that, in circumstances where real concerns are raised about the validity of a will which is being contested, the person who prepared the will should provide a statement.

A Larke v Nugus letter is the letter which requests the will writer to provide a statement. While such a letter can take a standard form, it’s best practice to ensure that any such letter is tailored to the specific circumstances of the particular claim to contest a will.

A Larke v Nugus letter is often the first step in contesting a will.

Do you deal with foreign will and estate disputes?
 

Yes. Provided the deceased had some link with England or Wales i.e. because they had assets here, were domiciled here (whether at death or before) or elected England and Wales as their choice of law under their will then it may be possible and, indeed, preferable to contest a will here.

We are one of the few contested wills teams in the UK with expertise in both onshore and cross-border will disputes.

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The team consistently delivers an exceptional service

Legal 500

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Hugh James is ‘head and shoulders above the rest’ for contentious probate.

The Legal 500

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Roman Kubiak heads the firm's contested wills, trusts and estates department, advising individuals, banks and trust companies. "He is very knowledgeable and dynamic, he has bags of energy and enthusiasm," says an interviewee. One lawyer says he is "very knowledgeable, refreshing to deal with, and very client-focused".

Chambers and Partners UK

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Matthew Evans is highly regarded in the market for his contentious probate expertise. "He is excellent, very specialist," says one peer, adding: "He is somebody I would refer my family to if I had a contentious probate matter." Interviewees also say Evans has an "excellent reputation in the market," and is "a good litigator - he is very respectful on the other side and always does a good job".

Chambers and Partners UK

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Arguably the best Welsh firm for contentious trusts and probate matters',

The Legal 500

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