Anyone who has read Bleak House by Charles Dickens will be familiar with the case of Jarndyce v Jarndyce, litigation over will and which went on years and cost everyone involved dearly. The case, fictional though it maybe, stands as a stark warning to anyone thinking of challenging the validity of a will.
One would hope that the will of any deceased person would be absolutely clear, leaving no room for ambiguity. Sometimes, however, certain aspects of a will are open to interpretation and this, along with disputes between beneficiaries of the will and executors, or disagreements about how much a particular asset is worth can all be reasons why a probate is contested.
To contest probable, you must have legitimate grounds. These are defined as follows:
- Lack of testamentary capacity;
- Under influence or coercion;
- Lack of knowledge or approval;
- Under the Wills Act 1837; and
- Forgery and Fraud
You can find more information on the Government’s website, here.
If you decide to contest probate and are a beneficiary of the will, you are allowed to see certain information concerning the estate before you decide to take formal action. You need to be as certain as you can be that you are pursuing your claim for the right reasons and that you have a very strong case. This is where good legal advice is needed.
A specialist contentious probate solicitor will look at the case and advise you on whether to take a risk and submit a challenge.
The risks come into two categories, financial and non financial. There are common misconception that costs all costs will be met by the loser, or that costs will be met out of the estate. The fact is that the allocation of costs is at the discretion of the court, and whilst, in many cases the losing party has to pay, that is not always the case. Litigation over a will can go on for a considerable period of time. Often specialist investigators have to be appointed to look into the background surrounding the formulation of a will. In addition, there are solicitors costs and possibly those of a barrister. It is unsurprising, as the parties in Jarndyce v Jarndyce found to their detriment that costs can run into many thousands of pounds. It is possible to engage legal representation on a no win no fee basis, nevertheless some costs are still likely to have to be paid by you. One way of trying to protect yourself from incurring these is to take out after the event insurance. Your legal representative will be able to advise you. If you do contest a probate and lose, the cost to you could be significant, with the consequence that in order to raise the funds, you have to sell valuable assets or even your home.
None financial risks can include the stress that you suffer fighting your case. This is likely to increase in relation to the length of time the case is taking to resolve. In addition, you are going to have to deal with a continuing stream of contacts from lawyers. Stress can affect your significant relationships and your ability to do your job. Irrevocably, your relationships with those you are fighting, if relationships existed, could be seriously damaged, or even break down completely. For all these reasons, if you are planning to contest probate, do it for legitimate reasons, not because you just feel aggrieved, otherwise you are taking a serious risk.