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28 Jul 2021

Could your will be contested after your death?

More people are challenging wills even though costs can exceed £75,000
contested wills

Family arguments over inheritance are becoming more common. But disputing a will could cost thousands of pounds.

Between October 2020 and April 2021, the law firm JMW Solicitors saw a 111% increase in enquiries about contesting a will compared with the previous six-month period, it told Which?.

In part, the rise is lockdown related. More people have died unexpectedly in the past year, sometimes without updating their wills.

But disputes were on the rise even before the pandemic, owing to factors such as complex families, an ageing population and the prevalence of high-value properties in people's estates.

We spoke to solicitors and families who had contested a will and found that an inheritance dispute can easily cost tens of thousands of pounds, even if you don't go to trial. If you take it all the way to court, costs can rise above £100,000.

Here, Which? explains what contesting a will involves and why some people choose this route despite the expense. We also look at possible ways to settle an inheritance dispute more cost effectively.

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Who can contest a will?

To challenge a will, you need to have a valid legal reason. These are:

  • Lack of testamentary capacity The deceased wasn't of sound mind when they made the will.
  • Lack of approval or knowledge The deceased was unaware of the full contents of the will (ie because they were visually impaired or had low levels of literacy).
  • Undue influence The deceased was coerced into writing the will.
  • Forgery or fraud The deceased was deceived in the making of the will or the document itself was tampered with.
  • Rectification An error was made in the drafting of the will.
  • Section 9 of the Wills Act 1837 The will is invalid, ie because signed by the testator or signed in the presence of two witnesses, as required by law.
  • The Inheritance (Provision for Family and Dependants Act) 1975 The will unfairly excluded someone the deceased was financially responsible for.

The type of challenge you're making could have a huge impact on costs.

As Martin Oliver, a partner at Wright Hassall who specialises in contentious probate, says: 'Whereas claiming lack of due execution could cost between £50,000 and £70,000, a case involving undue influence or testamentary capacity could cost as much as £150,000.'

That's because it can be very difficult to find evidence for the claim you're making. It can be difficult, for instance, to tell gentle encouragement from coercion.

Once you've decided what claim you're making, you'll need to submit a caveat. This blocks probate for six months so that the will can't be executed. Our freedom of information request to the Ministry of Justice shows that more than 10,000 caveats were submitted to probate registries in the UK in 2020.

How much does it cost to contest a will?

Ideally, you'll resolve the dispute outside court, potentially through mediation or another form of dispute resolution.

It's rare for a case to make it all the way to court - only 2% to 4% do, according to Martin Oliver.

But even disputes that never reach court can prove costly.

Alison Parry, partner and head of will and trust disputes at JMW, says: 'Say you've got an estate that's worth £200,000. When you've got two or three people arguing over that pot of money and each person has their own lawyers, very quickly you could see half of that pot disappear in legal costs before you've got anything off the ground.'

Below is how much a legal challenge could cost you, according to estimates by JMW:

As you can see, the cost goes up significantly depending on the nature of the resolution and how long it takes to reach. Alison Parry says that inheritance disputes commonly take a year to resolve, but can drag on for two to three years in some cases.

One person we spoke to spent £26,000 in legal costs contesting a will over a three-year period. In one month alone, just three and a half hours' of the solicitors' time cost more than £850.

Is it worth contesting a will?

In a June survey of more than 1,100 Which? members, 46 people (just 4% of the total) said that they had considered contesting a will, but ultimately decided against it. Of those, 17% said the expense made them think again - but 20% said that they were put off by the stress.

One Which? member who considered contesting the will on behalf of two relatives, after their father left everything to his new wife said, for him, it was a question of fairness: 'I find it unacceptable that sons should be completely eliminated from their father's life after death.'

One person who believed that the deceased wasn't of sound mind when they made the will spent £300 simply getting a preliminary opinion from a medical expert on their mental health.

To go the whole hog and get a full report from that expert, they would have had to pay not only the expert's £1,600 to £2,000 fee, but also anywhere between £1,800 and £2,200 to cover the solicitors' charges for liaising with them and preparing their witness statement.

If you're serious about contesting a will, you should try to involve a solicitor as little as possible for the sake of saving costs.

If you do go ahead with a solicitor, Which? Legal solicitor Laura Wynn advises that you choose one who specialises in contentious probate: 'Your high street solicitor could take you on a more expensive, circuitous route because they don't consider resolution or gather enough evidence at an earlier point.'

There are a couple things you can try early on that could save you litigation costs down the line.

If you're fighting over who should inherit specific assets in the will, an Inventory and Account request to the Probate Registry orders the executor to provide a full breakdown of the deceased's estate and could bring some clarity to who should get what.

Alternatively, if you suspect mistakes were made in the writing of the will, you could put in a Larke v Nugus request, which means the will writer has to provide a statement about the circumstances surrounding the document's preparation.

How can you stop your will being contested?

As our survey results show, discussing your legacy with friends and family surprisingly uncommon.

But having an open conversation about the contents of your will is one thing you can do to prevent conflict.

Writing a will in the first place - and updating it when your circumstances change - is another way to reduce the risk of a family argument.

Using a will-writing service such as Which? Wills can help make it watertight. Which? Wills estimates that if your affairs are fairly straightforward, you could draft a will in 30 minutes.

  • Whether you want to do it yourself or have someone draft a will for you, Which? Wills can help.

First featured in August's Which? Money magazine

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