This article was first published on The Gazette, and the original article can be found online here.

It is exceptionally difficult to predict with any degree of certainty the precise financial costs of contesting a will. Much depends on the nature of the dispute, the number of parties involved, and how protracted matters become.

There are a number of ways to challenge the validity of a will, such as alleging that the will is invalid, because the testator:

  • Lacked testamentary capacity
  • Lacked knowledge and approval of the contents of the will
  • Was subject to undue influence or fraud

Clients will often want to 'challenge a will', and will cite various reasons why the will should be set aside. They often feel very strongly and have fixed ideas about what should happen.

However, as a practitioner, it’s important to stop and consider whether contentious probate proceedings (which is the name given to claims challenging the validity of a will, rather than a claim under the Inheritance (Provision for Family and Dependants) Act 1975) is the best course of action to take, and indeed, whether that will be the best route to achieve the client's overall objectives.

Contentious probate proceedings have a number of disadvantages, not least where costs are concerned. Costs are very much front-loaded in a contentious probate claim. Parties are required, at the outset, to lodge copies of wills and testamentary documents, pursuant to CPR rule 57.5. This step is often overlooked by many, but the courts are starting to lose patience with practitioners who don’t comply with the rules.

There is also the requirement to file a counterclaim, which brings with it a fee. In addition, parties are required to prepare case management bundles and disclosure reports, as well as deal with costs management and costs budgets. All of these steps need to be taken at the outset, or very early on once proceedings having been issued, and have the net effect of increasing costs considerably.

Once a contentious probate claim has been issued, this can also be a potential barrier to settlement. The main reason being is that you cannot simply discontinue the proceedings if either:

  • You do not want to continue with a claim or defence
  • An agreement is reached between the parties

In order to bring matters to an end, it is necessary to refer to Practice Direction Part 57, paragraph 6.1. The options include inviting the court to have trial on the written alone (i.e. no oral hearing), inviting the court to discontinue, or if all the relevant beneficiaries agree, inviting the court to pronounce in favour of a particular will, pursuant to Section 49 of the Administration of Justice Act 1985.

Each of these options have both positive and negatives, and show that there is no quick and simple way to bring matters to an end without the involvement of the court.

The alternatives to a contentious probate claim could be a claim under the Inheritance (Provision for Family and Dependants) Act 1975, if the claimant is a spouse, child, cohabitee or dependant. If lifetime promises have been made, a proprietary estoppel claim may be worth exploring. If the will contains a discretionary trust, removing any biased personal representatives could be a sensible course of action. Or if the will doesn’t give effect to the testator's wishes, consider an application for rectification under Section 20 of the Administration of Justice Act 1982. Finally, if an agreement can be reached with all the relevant parties, executing a deed of variation (ideally within two years of the date of death) could be a good, cost-effective way of resolving any dispute.

So, the message is clear: commencing contentious probate proceedings may well be the most appropriate course of action for some disputes, but will not be appropriate for all. Remember that there are lots of other tools in your armoury; pick the right tool for the right job. Don’t act in haste, as once you have issued probate proceedings, you are on that course, come what may.

It will often be wise, if you do have doubts about the validity of a will, to buy yourself some time, enter a caveat, and then do as much evidence gathering as possible, before embarking on issuing proceedings. And keep your eyes open to alternatives, which may produce the same result, but much more cost-effectively.