Even if you’ve never been involved in a legal dispute before, you’re probably aware that the process can be expensive. This is just as true for cases involving wills as it is for other types of court case.
When a loved one dies, most of the time their family members are happy to administer their estate according to the instructions they left in their Will. However, this is not always the case. Sometimes family members may not be happy with the contents of a Will, or the way the estate is being handled. If this is the case for you, you might want to challenge the Will or hold the executors and trustees to account. You will only be able to do this if you – or the situation – meet certain criteria. You can find out more about when you might be able to challenge or dispute a Will here.
Taking a case to court can be a long-winded and complicated endeavour. You will need to work with your solicitor to carefully balance whether or not you think it’s worth it. There is always a risk that the case won’t work out in your favour. Of course, you could also have a great deal to gain. Disputes over a Will or estate can be complex and it pays to instruct an experienced solicitor.
If your solicitor believes you have a strong case, you may decide that you’re willing to take a chance on a positive outcome.
Can you challenge a Will without going to court?
The first step in a Will challenge or dispute is to work with your solicitor in order to carefully consider the law and the evidence in order to determine the strengths and weaknesses of your case.
The second step is often to protect your position and take the necessary steps to prevent loss to the estate. Occasionally, this may require you to take immediate steps through the court system. More often, your solicitor will start negotiations with the other parties involved in order to try and agree a solution.
This can be an effective strategy if the other beneficiaries, executors and close family members of the person who has died are open-minded about resolving the dispute. Generally people are, as most people are reluctant to get involved in the court system.
If initial negotiations fail to reach agreement, the next stage is often to engage in more formal Alternative Dispute Resolution (ADR). This often takes the form of mediation. This process can be very useful and takes place over a day or longer. It’s possible to have multiple mediation sessions if necessary.
For mediation to be successful, everyone involved would need to be prepared to agree on a fair solution. This would likely involve compromise on all sides, but would mean that a lengthy court case could be avoided. The cost of mediation would also be significantly lower than the cost of going to court. Most disputes are resolved at this stage.
Unfortunately, in some cases it won’t be possible to reach an agreement out of court. This may be because some (or all) of the people involved aren’t prepared to compromise, or it may be because a judge’s ruling is required to permit the required changes to the Will.
Download our free guide to Challenging A Will
This free ebook has been put together as a guide to help you understand the process of challenging a Will.
What should you expect to pay if you do go to court?
If your matter does need to go to court, you’ll likely be concerned about how to keep legal fees affordable.
The cost of a contested probate claim can vary hugely. Each case is unique and it’s not possible to accurately predict the total cost until your solicitor has completed a full investigation. Cases involving court proceedings can often result in fees exceeding £40,000. If your claim was to go all the way to trial, you may face legal fees of £80,000 or more. Thankfully, very few cases actually go all the way to a trial.
A good solicitor will thoroughly explain what to expect in terms of cost. This will incorporate their own fees (and how they bill for their time) as well as any additional expenses such as court fees or fees for expert witnesses.
In some situations, the judge might be able to order you to pay some of the legal costs of the other party. Again, your solicitor will explain what to expect in this respect, as this will likely be something you need to consider carefully.
Will you have to pay upfront?
The cost of a court case can be very daunting. However, if you have a strong case this shouldn’t put you off pursuing what you believe is right.
Most solicitors will not require you to pay the whole sum up front. If cost is a big concern for you, your solicitor will be able to work with you to find a solution.
This may involve:
- Putting together a payment plan
- Checking to see if you have Legal Expenses Insurance
- Deferring payment until after your matter is settled (this is a good option if you are guaranteed at least some money when the estate is administered)
- Pointing you towards any case-specific loans that may be available for you
- Exploring ‘no win no fee’ options
In some cases, the judge might order the other party to pay toward your legal fees if you win. Your solicitor will be able to explain the likelihood of this happening in your situation. Of course, you will still need to have a plan in place for how you will cover the legal costs if this doesn’t happen.
Is it just the monetary cost you need to consider?
The monetary cost of a court case is not the only thing you should consider; disputes can be very taxing in other ways.
If a settlement can’t be reached, it might take two years or more for the matter to come to court, so be prepared for a long wait. The process is likely to be very stressful at times, though choosing the right solicitor can make it less of an ordeal.
A court case can also put a strain on family relationships, especially if family members are on opposing sides of the case.
If your case goes to court, you may also need to be prepared to act as a witness.
Is going to court the right decision for you?
In order to decide whether a court case is the right choice for you, you will need to carefully consider all the factors.
Cost is a key issue, as are personal relationships and mental wellbeing. You will also need to consider what you might be able to recover and what you believe is the right course of action. Of course, just because you believe something is ‘morally’ right, that doesn’t mean the law will agree with you. Your solicitor will be able to advise you on this.
We would advise having a very thorough conversation with your solicitor in order to fully weigh up all these factors, as well as the likely balance of benefit and risk.
Please remember that your solicitor will need time to fully assess the facts and evidence of the situation before they are able to offer professional advice or undertake any work on the matter.
How Roche Legal can help
We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:
- Trusts and Estate Planning
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Powers of Attorney
- Court of Protection matters
- Presumption of Death Applications
- Missing Persons Guardianship Applications
Need further help?
If you wish to speak with somebody regarding a disagreement over a Will or Trust then please do not hesitate to get in touch with us.