If you contest a will, and it cannot be resolved immediately, you’ll enter a period of mediation. Following that, unresolved cases will go to court where a judge will decide the outcome.
When someone close to you dies, you might find that the executor of their will isn’t acting appropriately. Alternatively, you might have reason to believe that the will itself isn’t a valid one and that it has been written under duress or potentially even forged. You can contest a will, but the process can be lengthy and costly, although the benefits often make it worthwhile.
Read on to find out more about the processes of contesting a will.
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In order to contest a will, you either need to show that it’s not a valid will, or that it isn’t being carried out as per the instructions it contains. You also need to be someone close to the will. That either means you’re a spouse (including a civil partner) of the deceased or a child. If you were a partner of the deceased but weren’t in a legal partnership, you might be able to claim if you can show you lived with them for more than two years.
If you believe that the executor isn’t following the instructions of the will, you can make a claim to take over the probate (the name given to the process of managing the estate). It should be relatively straight forward if you can demonstrate why they aren’t following the instructions, although don’t take this for granted.
Alternatively, if you think the will isn’t valid, you’ll need to source some evidence. That might be testimony from a handwriting expert, who can prove that the signature on the will doesn’t match that of the deceased, indicating it was forged.
Or you might believe that it was written under duress or while not of sound mind, something which you might be able to prove with a medical history.
Once you’ve established good reason to contest a will, and you’re sure that you’re in a legal position to begin a claim, you should speak to a solicitor who works in probate. Challenging a will is not a process to take lightly, nor is it something you can do yourself. You’ll need a legal expert, especially if the executor stands their ground.
The solicitor will ask for your reasons to challenge and look over your immediate evidence. They’ll then make a recommendation on whether they believe you have a case, or whether you need more evidence, or it’s not worth pursuing it.
The solicitor will then fill in an N2 Form and notify the executor of your challenge and aim to resolve the situation immediately. If the executor resists your challenge, you’ll enter a period of mediation.
Mediation is when you begin to negotiate with the executor and their legal representation to try to resolve the case before it goes to court. You don’t need to enter mediation if you believe a court is the best place for the claim to be examined, but this isn’t advised.
Court fees and the associated legal costs are much higher, and if you lose, the judge could view you in a negative light for not attempting mediation when they decide liability for those fees.
Mediation can be carried out in-person or via letters. If you both agree to meet, then you’ll arrange a venue, often a meeting room in a solicitor’s office, where over the course of the meeting you’ll explain your complaint and aim to convince the executor to relent or to at least meet you in the middle. If you instead do it over letter, it’ll take longer as requests must be sent back and forth before any agreement is struck.
No matter what you discuss in these communications, they will be held as without prejudice. This means that they cannot be disclosed to the judge if the case did go to court, because you are making an offer to come to a solution without prejudicing the belief that you are in the right.
Most cases are resolved at mediation. It’s usually clear whether there is a solid claim to be made, and no solicitor will encourage court action if a case looks like a guaranteed loss. However, some estates are more complicated, and sometimes mediation isn’t enough.
If mediation is successful, you’ll come to terms on a new agreement that will be overseen by your solicitors. The executor will then carry out the new terms of the will, or release probate so that you can take over.
If mediation fails, then you’ll be going to court. A date will be set for an initial hearing which will then progress to a trial if it isn’t resolved by then. If it goes to trial, expect a judge to listen to both sides of the argument and examine the evidence provided. You may need to present witnesses, such as the handwriting expert if you are claiming forgery.
The judge will then make a decision on whether the claim is valid or whether the original will stands. Their decision is final, although you may be able to appeal. Your solicitor will recommend the best course of action.
Contesting a will doesn’t follow a set timeline, so there’s no definitive example to give on how long it takes, or indeed how much it costs.
If a contested will is resolved in the short term, it’s rare that it will last more than three months from the initial claim being submitted. The mediation will obviously delay it, as will the chosen method of communication. An in-person meeting is faster but maybe more expensive while sending letters back and forth can drag out the time. Mediation can usually be resolved within six months.
When a probate claim goes to trial, you could be looking at a much longer process, potentially up to a year or even longer. Again, the complexity of the particular case and the estate will have an impact on how long it takes for it to be resolved. In terms of costs, a court trial will, of course, result in much higher legal fees, potentially into six figures.
You might also be liable for the legal costs of the executor if you lose, which is why you must be sure that you have a solid case. If you resolve the case at mediation, your fees are more likely to be around the £7,500 to £10,000 mark.
Resolving a case at mediation causes a lot less stress and worry, as well as costing much less in terms both of money and time. Some solicitors will only charge you if you win your case, so be sure to discuss the agreement upfront.
Here at Money Savings Advice, we have partnered with some of the UK’s leading Contested Probate claim management companies. They have already helped thousands of people make successful probate claims and they can do the same for you.
Choosing an independent claims management company means they won’t proceed with a claim unless they are sure it is in your best interests. They are also regulated by the FCA, which gives you an additional layer of protection.
If you would like to speak to one of these claim management companies who can help you make a probate claim, then click on the below and answer the very simple questions.
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