Contesting a will

It is possible to challenge the validity of a Will in certain circumstances. The litigation team at Grant Saw has a successful track record of dealing with contentious probate matters. Our solicitors have successfully challenged the validity of Wills, as well as successfully defended claims challenging the Will on behalf of the deceased’s estate.

At Grant Saw you can be assured that your case will be handled with sensitivity.  Michael Clary (litigation partner) is a member of the Association of Contentious Trust and Probate Specialists (ACTAPS).

Why would someone need this service?

A Will, when properly prepared, represents the true wishes of the testator (the person who has made the Will) as to how he wishes his assets to be distributed on his death. It is therefore important that a Will is created according to certain formalities. A Will should only be prepared at a time when the testator had the requisite mental capacity to make his own free and independent determination as to how he wishes his assets to be dealt with upon his death.

A Will is occasionally challenged when, for example, it is alleged that it has been improperly executed. This can occur if the witnesses named in the Will did not actually witness the testator signing the Will. A Will can also be challenged if the testator signed the Will at a time where he did not have the requisite mental capacity (for instance due to illness) to provide his instructions for the drafting of his Will.

Other possible challenges to the Will can arise where it is maintained that the testator was forced under duress to sign a Will which did not represent his true intentions or where such undue influence was placed on the testator that he felt that he had to sign a Will that did not represent his true intentions.

If a Will is to be challenged, it is important that prompt legal advice is obtained. If Solicitors are instructed in good time, a document known as a Caveat, can be issued which will prevent a Grant of Probate from being obtained. A Grant of Probate is necessary in order to allow the Executors to distribute the deceased’s estate.

If an executor is informed of a claim regarding the validity of the deceased’s Will and that claim is disputed by the estate, then prompt legal advice should be sought by the Executors of the estate.

There are other circumstances in which you may dispute a will. See here for more information.

How long is the legal process when contesting a will?

If the parties are agreeable to considering a negotiated settlement, without the need to issue court proceedings, then it is possible that the dispute could be settled within a number of weeks.

If it is not possible to resolve matters amicably, one of the parties involved in the dispute will need to issue court proceedings. On average, it takes between 12 months to 18 months for a claim to reach trial. In the vast majority of cases claims do settle prior to trial by settlement terms being agreed between the parties.

Is it expensive?

The costs incurred will largely depend upon the complexity of the dispute. We will provide you with an estimate of costs at the commencement of any new instructions.

Under certain circumstances we may be able to offer a “no win, no fee” arrangement, also known as a Conditional Fee Agreement.

What should people do before calling?

It would be helpful to have to hand a copy of the Will when you first contact us. Furthermore, if you are able to provide us with the approximate size of the estate, this too would be of assistance.

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