Step by Step Guide to Challenging a Will
Challenging a will is a potentially difficult and lengthy task. It is a process that should only be entered into in exceptional circumstances. It is often possible to settle a dispute about a will without the need to go to court. Furthermore, challenging a will can often cause irreparable damage to family relationships.
There is sometimes no option however, but to take legal steps to challenge a will. If you find yourself in a situation where the only viable course of action is to raise a legal challenge, you must first ensure that you understand the process – and that you have a valid claim.
1. Decide on Your TacticsThe first step in the process of challenging a will is to ensure that you have the basis for a valid claim. Broadly speaking, there are two main grounds for legal action: lack of provision for a financial dependent (normally a child), and an invalid will. In order to successfully contest a will on the grounds of lack of provision you will need to prove that you, or the individual for whom you are acting, were financially dependent on the testator at the time of their death but that no reasonable provision has been made in the will. The most common grounds for lack of validity are a failure to have the will signed by witnesses, or a claim that the testator was not aware of what they were doing.
2. File with the Probate RegistryOnce you are sure that you have a case, you must file a document with the Probate Registry. This document, known as a caveat, has the effect of temporarily preventing a grant of probate being made. It is imperative that you act quickly if this document is to be lodged before such a grant. Furthermore, there is a time limit of six months for a claim of any sort.
3. Seek and Retain Legal AdviceThis area of testamentary law is notoriously complex, and it is very difficult to secure the desired outcome. One need only remember the recent challenge to the will of a woman who bequeathed her entire estate to the owners of her local Chinese restaurant. Her children were unsuccessful in their challenge.
Legal advice can be expensive, and you may wish to talk to the Citizens Advice Bureau (CAB) first. The CAB can offer free advice, but they will probably encourage you to retain the services of a solicitor if you choose to pursue a claim. While some will require payment up front, others will work on the basis that they will receive a percentage of any settlement.
4. Keep NegotiatingIt can be many months before a case comes before a judge. Many litigants mistakenly believe that they are not permitted contact with the other party during this period. In reality, though, you should make sure that you continue negotiating while you wait for your case to come up. Settling out of court can significantly reduce costs on both sides, and can result in less fractured familial relationships.
It is imperative to remember that challenging a will is a difficult and time consuming process. You should always seek legal advice before beginning any such action.