If the Will is Contested

Contentious probate advice

What are the challenger's aims?

If every challenger to a Will was a reasonable objective person who merely thought that they deserved a bit more of the assets, things would be a lot easier. Unfortunately, many people are motivated by either animosity, or a knee jerk shock reaction to the shock of receiving less in the Will than they thought they would. When a caveat is launched however, it doesn’t necessarily mean you are going to be dragged into a vast legal battle. A caveat is often used to give the person breathing space to decide what their course of action is. Consider that it costs thousands of pounds to fight a case in court, but only £15 to launch a caveat. There is a chance however that if the challenger is bitter but has no legal leg to stand on, they could ‘play the system’ and delay the process as long as possible to spite you. Be aware also of the wealth of the challenger and if they could sustain a long expensive legal challenge.

How much of a case do they have?

First thing to do is consult an experienced lawyer who specialises in probate. It is however difficult for a challenger to prove that the Will exhibited undue influence or a lack of testamentary capacity. Nonetheless, the factors mentioned above as well as the general time scales of this situation, can make dealing with this very costly. You could however try to ‘warn off the caveat’ by waiting and forcing the challenger into thinking long and hard about going all the expensive way to court where they will be required to elaborate as to why they placed the caveat. It can however often be a better bet to try and sit down with the challenger and sort out an amicable solution that prevents the lingering expense of long term court litigation. Even if you know you’re in the right, it could potentially leave you with more money if you raised your offer to them.

Things to do

• Hire an experienced probate lawyer immediately.
• Make sure that the Will is legally watertight
• Gather witness statements
• Gather full financial information
• If you have a note from the deceased explaining the reasons behind the Will, this is extremely useful

Tips

• Remember that if the challenger’s case looks hopeless, that their solicitor took the case to make money, not because he thought they could necessarily win.
• Be patient, it’s unlikely to be resolved quickly. If they’re bitter they can "play the system’ and keep delaying the probate seemingly endlessly.
• If you offer to settle, they could consider it a sign of weakness. The challenger may think she has a chance of winning, when they might not have a legal leg to stand on.
• Costs can quickly escalate however. If you’re not prepared to negotiate, be prepared that you may end up spending tens of thousands of pounds if the case drags on for a long time.
• Be aware that even if you win, if the challenger is deemed by the judge to have had good reason to contest, your legal costs may have to come out of the estate.

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