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IMPORTANT UPDATE: For Those Upholding or Disputing a Will.

A recent ruling has clarified what you need to do, if you want to uphold or dispute a Will.

Key Points

  1. You are entitled to dispute a Will if you have reasonable grounds to do so. The first thing you need to do, is go to Court to enter a caveat, to prevent a Grant of Probate being issued to the executors.  This gives you the time you need to find out what the grounds for your dispute will be.
  2. You do not need to make a positive case as to why the Will is invalid, you can just demand that it is proven to be valid. If possible, it is better if you can make a positive case regarding invalidity, but it is not essential.  It is, however, recommended that you seek legal advice from experienced, contentious probate solicitors such as Else, at the earliest opportunity.  This can save you considerable time and money.
  3. If it becomes clear as you go along, that you are unlikely to be successful with your challenge to the Will, then you should withdraw. If you do not, you risk paying the costs of those upholding the Will from that point onwards.  At every stage, our expert disputes team can advise you on the best course of action.
  4. If you want to uphold a Will, then you can avoid expensive and lengthy legal battles, by supplying the evidence that the Will is valid (witness statements, GP records etc.), at the earliest opportunity. Your best approach is to engage an experienced solicitor at the outset – they can work with you to ensure the matter is resolved as quickly as possible.

Whether you are disputing or upholding a Will, the earlier you seek professional advice, the lower your legal costs will be.   

Disputing a Will

The loss of a loved one is always a difficult and stressful time.  It can be made considerably worse if someone disagrees with what they receive, or if they feel that they were not left what they were due.

If someone disagrees with the contents of a Will, they can contest it.  This can take years to resolve.  During this time, both parties are clocking up legal fees and no one can access the deceased’s estate until the issue has been resolved and the probate completed.

The burden has always been on those upholding the Will to prove that it is valid.  The defendant (the person disputing the Will) does not have to prove that it is invalid.  This means that those upholding the Will are left waiting for the defendant to withdraw the challenge or for the Will to be declared valid in a Court of Law.   During this period, the upholders of the Will can accumulate a large legal bill.

However, this might be changed by a recent case.  When Kenneth died in August 2012, he left his £2m estate to his partner, Bernice.  His daughter, Ruth, disputed the Will.  This was finally resolved in April 2016, with the Will being upheld and Bernice being granted probate.

For the first time in such a case, Ruth was ordered to pay Bernice the legal fees she had incurred in defending the Will from June 2013.  The Court believed that Ruth had received sufficient evidence by this date to make it clear that the Will was valid and she should have withdrawn her claim.

Both sides had accumulated significant legal fees and Bernice had waited nearly 5 years to be granted probate so she could benefit from Kenneth’s estate.  Such large legal fees and long timescales can be significantly reduced by engaging an experienced solicitor as early as possible.

Here’s the full story:

Kenneth Jordan died in August 2012.  He had updated his Will in February 2012 and made his partner, Bernice Elliot, the sole beneficiary of his £2m estate.

His daughter from a previous relationship, Ruth Simmonds, was not happy with this situation.  She stopped Bernice progressing by entering a caveat.  This prevents a Grant of Probate being issued, so that the estate cannot be administered.  A caveat can be useful, as it gives the person making it, time to make enquiries, to see whether there are grounds to dispute the Will.

Ruth alleged that her father had lacked the mental capacity to change his Will in February 2012.  However, she did not take steps legally to progress her claim.

As time went on, and with no one being able to access the estate, Bernice had no option but to take the matter to Court.  The Court then had the option of either:

  1. Confirming the validity of the February 2012 Will, issue a Grant of Probate (called a Grant of Probate in Solemn Form) and as a result allow Bernice access to the £2m; or
  2. Deny its validity and uphold an earlier Will.

This action was not without cost (or risk) to Bernice.

Defendants (like Ruth) can insist that the Will is proven and cross-examine the witnesses but they do not have to make a positive case as to why the Will is invalid.  A costs order cannot be made against them, unless the Court considers there were no reasonable grounds for opposing the Will.

So, a defendant can demand that a Will is proven – at great expense and lost time to the upholder of the Will.  Providing the defendant has reasonable grounds to do this, they do not have to pay the upholder’s costs even if the Will is proven valid. 

This may seem somewhat one-sided, as a defendant can delay a Grant of Probate for years with reasonable grounds, and escape paying the legal costs of the upholder. There has been some concern that a few individuals were using this rule inappropriately to put maximum pressure and expense on the supporters of a Will.

In this instance, Ruth and Bernice went all the way to Court.  Ruth did not raise a positive case but insisted that the Will be proven.

The judgment was made on 7th April 2016 – nearly 5 years after Kenneth had passed away.  Ruth’s challenge was unsuccessful and the Court found that the Will was valid.

This is where the story becomes interesting.  The Court agreed that there was some doubt about Kenneth’s mental capacity and so Ruth was entitled to test some of the evidence and insist that the Will be proven.  However, the Court felt that she should have reassessed her prospects for success and withdrawn her claim when she had received:

  1. Copies of the Witness Statement of the solicitor who prepared the Will;
  2. Records from Kenneth’s GP; and
  3. Records from Kenneth’s nursing home

These records showed that Kenneth had the mental capacity to update his Will in February 2012 and so it was valid.  An experienced and knowledgeable solicitor would have identified these points and would have been able to convince Ruth to withdraw her challenge or, at least, significantly reduce the time and cost of defending the Will.

Ruth received these records on 3rd June 2013 and she decided to pursue her claim.  The Court felt she should have withdrawn her claim at this point and ordered her to pay Bernice’s significant legal costs from this date.

This case is good news for those:

  • Looking to establish the validity of a Will, but concerned about the cost and time involved;
  • Disputing a Will, as it gives them clear guidelines on when they can be exposed to paying costs to the upholders.

In either case, this ruling highlights the importance of seeking legal advice early on.

Andy Rudkin, Head of Dispute Resolution at Else Solicitors said: “This is an important ruling, as it makes it clear what will happen to a defendant if they continue to pursue a claim after they have received sufficient evidence proving it is likely to fail.  This should not deter those who are looking to dispute a Will and is good news for those looking to uphold one.  In both cases, we strongly advise you to take legal advice at the earliest opportunity.”   

Why Else?

Else Solicitors is experienced in writing Wills and administering probate, as well as successfully advising clients through the difficult and sensitive issues of contentious probate. We have an enviable reputation for always going the extra mile and offering you a personal, jargon free and sympathetic service during these emotional times.

Here is what just one of our clients had to say:

“We were both very impressed with the attitude and the caring nature given to us sorting out my wife’s late father’s estate. I would certainly recommend Else Solicitors to anyone who is going through the stages of estate planning. Thank you.”

If you would like some legal advice about a disputed Will in confidence, then we invite you to contact Andy Rudkin, Head of Dispute Resolution at Else Solicitors on 01283 526239 or at andy.rudkin@elselaw.co.uk.