Following on from our recent article, when to dispute a Will… Once you have considered whether or not you have grounds to dispute a Will you will then need to take action in order to take the matter further.
The first thing to consider is whether or not a Grant of Probate of Letters of Administration has been granted. The Grant of Probate or Letters of Administration are the documents which the executor or administrator needs to be able to deal the deceased’s assets.
If a Grant of Probate or Letters of Administration has not been granted then the first thing to do is to file a Caveat with the Probate Registry. This simple process which costs just £20. Once this is in place a Grant of Probate of Letters of Administration cannot be issued which means that the estate cannot be administered.
If the Executors or Administrators do not consider that the Caveat should be in place, then they need to file what is known as a Warning with the Probate Registry.
The executors will then serve you with a copy of this Warning. Once you receive this you will then have 8 days to file what is known as an Appearance with the Probate Registry. Given this small time frame it is important that you take immediate action if you receive a Warning. An Appearance needs to give full details of your claim and why you consider that Grant of Probate should not be obtained. Once the Appearance has been lodged a Grant of Probate cannot be obtained without consent of the Court.
When applying for the Caveat, you may also want to file what is known as a “Larke v Nugus” request with the solicitor who drafted the Will. This comes from the case of Larke v Nugus which held that a solicitor who drafted the Will has a duty to provide certain information when the Will is in dispute.
- Within this request, you can ask the solicitors who prepared the Will for information such as:
- Details of how and when they received instructions;
- Copies of attendance notes and telephone calls with the Deceased taking instructions on the Will;
- Information about the mental capacity of the Deceased at the time of making the Will; and
- Information concerning the Deceased’s knowledge at the time the Will was made and if any previous Wills were discussed.
If the Testators capacity is in question then a copy of the Deceased medical records will also need to be obtained. However, these can only be obtained with consent of the executors or with consent of the court.
Once you have taken the above steps or if a Grant of Probate or Letters of Administration has been granted you will need to send the Executors a Letter of Claim. This is a letter which fully sets out your position, what you consider is required to remedy the position and sets a time frame for a response.
Once this has been sent the parties would usually enter into correspondence setting out their respective positions and may agree to enter into some sort of mediation in order to try and settle the dispute.
If the matter cannot be resolved then proceedings will need to be issued in order to follow the court process and have the court ultimately decide he issues.
How long do I have to dispute a Will?
If the Will was fraudulent then there is no time limit. However, for all practical purposes, you ideally need to dispute it before a Grant of Probate has been issued or at least before the estate has been administered.
If the estate has been administered then you may be able to bring a claim against the executors of the estate or beneficiaries but it can be much harder to recover sums in these circumstances.
Who pays the costs of the dispute?
Any party getting involved in a legal dispute should be aware that it can be an expensive and lengthy process.
The general rule in respect of costs of litigation is that the losing party pays the winning parties costs. However costs are always within the discretion of the court and the court has the power to make any order in respect of costs that it sees fit.
The costs of a probate dispute may be taken out the estate if:
- If the Testator or their beneficiaries have been the cause of the litigation; and
- If the case is such to warrant an investigation then the costs will be borne by the party who incurred them.
Parties must however bear in mind that the costs are taken out of the estate then this will reduce the amount in the estate to be distributed to beneficiaries.
The court may be prepared to order that costs should be paid personally by an Executor if it feels that the Executor’s conduct has been so unreasonable as to justify it.
If you would like advice or support around contesting a Will, please contact Louise Sackey, Associate Dispute Resolution Solicitor at Else Solicitors on 01283 526235 or email her via firstname.lastname@example.org.