What are the Steps to Disputing a Will?

What are the steps to disputing a will?

When you find yourself in a situation where you need to dispute a will, it can be a complex and challenging process. However, it's important to remember that these types of cases tend to follow the usual steps:

1. Speaking to a Wills Dispute Solicitor  

If you are dealing with a dispute over a will, it is crucial to seek advice from a solicitor who is experienced in this area of law as soon as possible. This is important to ensure that you comply with the permitted time constraints. While it is still possible to contest a will after probate is granted, it is always better to make the claim beforehand.

Our Will Dispute Solicitors at PSR can provide you with a thorough evaluation of the merits of your case and advise you on how best to proceed.

2. Gathering Evidence

Gathering all necessary documents and evidence to support your claim is a crucial step in the process. This involves obtaining copies of the will, medical records, and witness statements, among other things. It is vital to ensure that you have all the relevant information readily available for the wills dispute team to help strengthen your case. By doing so, you can improve your chances of reaching a favourable outcome in the dispute resolution process.

3. Mediation

When dealing with disputes involving multiple parties, it is always advisable to explore mediation as an alternative to court proceedings. Mediation offers a platform for all parties to come together, discuss the issues at hand, and work towards a mutually agreeable solution.

This process is facilitated by an impartial mediator who helps to navigate the conversation and ensure that everyone's concerns are heard. Mediation can be a faster and less expensive way to resolve disputes, as it avoids the lengthy and costly process of going to court. Mediation also provides an opportunity for the parties involved to maintain a positive relationship, which may be important in the future.

If you are making a claim against an estate, we can help you by lodging a caveat. This will prevent the grant of probate or letters of administration from being issued, so that the estate cannot be administered without taking your claim into account.

4. Court Proceedings

In case the mediation process doesn't work, you have the option to formally initiate legal proceedings by filing a claim in court. In the court process, you will have to present your case, and the evidence will be examined, and a judge will make a ruling. It is crucial to be well-prepared for court proceedings and have all the necessary evidence and documentation in place.

Our Wills Dispute Solicitors will assist you in navigating through your case successfully, with your best interests as the top priority.

What evidence is needed to contest a will?

To contest a will effectively, comprehensive evidence is crucial. Making the claim may not be an easy process, which is why the case requires evidence to prove that the will is invalid or unfair. The type of evidence needed to contest a will differs according to the basis of the challenge being made.

Types of Evidence Required to Contest a Will on the Basis of Lack of Testamentary Capacity.
 

When creating a will, the testator must have the mental capacity to understand the implications of their decisions and the ability to communicate those decisions clearly. If a person is suffering from a medical condition that affects their cognitive abilities, it may affect their ability to create a valid will. Some examples of such conditions include:

Medical Records & Doctors Assessment

To contest the validity of a will on the grounds of lack of testamentary capacity, challengers typically rely on medical records. These records can provide an unbiased professional opinion on the testator's mental state, which can be a vital piece of evidence in establishing their capacity at the time of making the will. Alternatively, a doctor's assessment can also be used as evidence to prove the lack of testamentary capacity. A doctor's assessment is an evaluation that confirms the testator's capacity to make a will.

Expert’s Retrospective Capacity Assessment

It is possible to use an expert's retrospective capacity assessment as evidence to support the lack of a testamentary. This assessment examines an individual's cognitive abilities in the past, usually when there are doubts about the testator. The key difference between the doctor's assessment and the expert's retrospective capacity assessment is that the doctor's assessment focuses on the last state of the testator, while the retrospective assessment focuses on the specific time of inception of the will and when the doubts occurred.

If a court determines that the testator did not have the mental capacity to make a will, the will may be considered invalid. In this case, a previous will may be used to distribute the estate. If no previous will exists or is valid, the estate will be distributed according to the laws of intestacy.

Types of Evidence Required to Contest a Will on the Basis of Undue Influence Evidence

Gathering evidence for Undue Influence can be rather difficult as you would have to prove that the testator was manipulated into making the will that does not accurately reflect their wishes. The ways to prove this would include:

Direct Evidence

Direct evidence may include expressions by the testator themselves that they did not wish to make the will and were felt obliged to do so, as well as testamentary evidence as to the control exerted by the beneficiary, such as physical violence, blackmail, or isolation of the testator from family and friends

Circumstantial Evidence

In situations where there is no direct evidence, circumstantial evidence can play a crucial role. This may require making conclusions based on facts such as the type of relationship between the person who made the will and the person who is suspected of influencing them, any unexpected or sudden alterations to the will that benefit the suspected influencer, and any attempts to hide or mask any involvement in the creation of the will.

Witness Testimonies

Statements from witnesses who were close to the testator and had observed their relationship with the alleged influencer can provide significant evidence in your claim. Witness testimonies can help determine whether the testator's own wishes were overpowered by coercion or pressure.

Types of Evidence Required to Contest a Will on the Basis of a Lack of Due Execution

It is essential to ensure that the correct legal procedures are followed when creating or amending a will to avoid potential challenges. Lack of due execution is a ground on which the legality of a will can be disputed, and it may result from errors in the execution process, such as improper witnessing or signing of the will. Evidence that can support this claim include:

Documents

In case there is any documentation that goes against the correct execution of the will, it can be considered a proof of lack of due execution. The documents should demonstrate that the process was not completed correctly. Any missing, incomplete or incorrect details in the document can be used to contest the current will.

Witness Testimonies

It is important to consider testimonies from any witnesses who were present during the execution of a will. Their evidence can be crucial in determining if the will was executed properly. For example, if the witnesses did not sign the will in the presence of the testator at the time of its creation, their testimony may support a claim that the will was not properly executed. A will can also be contested for lack of due execution if there was no witness involved at all.

Types of Evidence Required to Contest a Will on the Basis of Fraud

Contesting a will on grounds of fraud is challenging due to the high standard of proof required and the nature of evidence. Seeking legal advice and collecting strong evidence is crucial in such cases. Examples of evidence would include:

Forgery & Impersonation

If there is strong evidence that the signature of the will or testator has been forged, it can be considered as fraud and the will can be declared invalid. Furthermore, if you can prove that someone has impersonated the testator while executing the will, it can also lead to the invalidation of the will and result in further legal complications.

False Representation

If there is evidence indicating that the testator was influenced to create a will based on false representations about a potential beneficiary's character, it can be considered as proof of fraud. This can result in changes in the distribution of assets and a valid claim being made. The same applies if there is a conflict of interest between the solicitors who wrote the will and the testator.

Types of Evidence Required to Contest a Will on the Basis of Lack of Adequate Provision

A lack of adequate provision refers to a situation where a person believes that they have not been adequately provided for in a will. The evidence that can be used to support this claim includes:

Financial and Personal Circumstances

Evidence related to the financial and personal circumstances of the claimant can prove lack of adequate provision. The evidence should encompass a comprehensive understanding of the claimant's financial situation, including their sources of income, debts, and assets. This proof should take into account any obligations or responsibilities the claimant has, such as dependent children or elderly parents they may be responsible for.

Other relevant factors, such as the claimant's health or disability status, should also be considered. By providing detailed evidence of these circumstances, the claimant can demonstrate why the provision made for them in the will is inadequate and justify their claim for further provision.

Family and Dependants

This proof should include the level of dependency of the claimant on the deceased, as well as any promises or responsibilities the deceased had to provide for them and their dependents. These details are crucial in determining the validity of the claim and the extent of the compensation that the claimant may receive.

Disputing a Will can seem like a daunting task, but the Wills & Probate Solicitors at PSR are here to help.

Our team of experts will immediately put you at your ease and will explain everything in a clear straight-forward way, keeping you informed at all stages, to help minimise your stress and concern.

If you are looking to contest a will and you require legal assistance, contact our team of will dispute solicitors. We aim to respond to all queries within one hour during normal office hours, and within the next working day outside of these hours.​​​​​