Evidence and Procedure in Challenging A Will

Taking Instructions To Challenge A Will 

Litigation can be paper heavy, and many clients are surprised by the volume of material required and generated in these types of matters. 

Some of the initial matters that need to be looked at are: -

• eligibility;
• whether the application is in time;
• consideration of the relevant factors;
• getting a copy of the will (and previous wills);
• perhaps an injunction to restrain the dealing of property e.g. an interim injunction to restrain the sale of a property.

Typically a thorough and detailed statement needs to be taken to understand whether there are reasonable prospects. Sometimes such prospects will not exist such as when the estate is very small and the person wanting to make the application is independantly wealthy. 

It makes sense to brief counsel early to get an opinion on prospects even though some clients will be reluctant to do so. It is doubtful that the client will be able to recover the costs of some such preliminary steps but they can be well worth it. 

Naturally, such costs need to be disclosed upfront to the client in a costs disclosure document. 

The Hazards of No Win, No Fee Arrangements

"No win, no fee" arrangements are becoming increasingly common for a broad range of legal services including contested will matters. Such arrangements can have a useful purpose when the applicant simply cannot afford to pursue the case (and the law firm is willing to take on the risk). 

However, it is possible that such arrangements could potentially reduce the size of the estate more than otherwise because the law firm providing the services carries the risk of the case failing or succeeding and in so doing will "load" the price of its services accordingly.

Early Consideration To Settling A Contested Will

Naturally, it may be in the interests of parties to try and resolve a matter so consideration should also be given to making appropriate offers. 

Filing Proceedings

Once proceedings have been filed there are other requirements as to evidence, notice that needs to be given and perhaps the need to cap costs of the parties. 

At the directions hearing the court will enquire about the administrator's affidavit, the affidavit of service etc. It may also be necessary for the parties to attend mediation which is where the bulk of matters end up resolving. 

To find out more about the evidence and procedure utilised in cases whe a will is challenged call us to book a conference. 

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