What are the first steps in challenging the validity of a will?
- Making law easy for you -
Disputes often arise around the will of a deceased person. The first step in challenging the validity of a will is always to enter a caveat which is a notice in writing that no grant can be obtained without notice to the caveator. This effectively stops an application for a grant of probate as it has to be removed before any application can go ahead. This provides a period of six months for the concerns regarding validity of the will to be investigated. It may be extended for further periods of six months for a nominal fee.
Whatever the grounds for challenging the will, a key part of the process of resolving disputes will rely on the evidence provided by the person who prepared the will in question. The easiest and cheapest way to obtain this evidence is to request a Larke v Nugus statement. This requires the person who prepared the will to make a statement regarding the circumstances in which the deceased gave instructions for the will and the circumstances in which the will was executed.
How does a Larke v Nugus letter help the validity of a will?
A Larke v Nugus letter will provide you with a statement from the person who prepared the will which should provide the following information:
- Who introduced the will writer to the deceased and how long had they known them
- The date that instructions were received from the deceased
- If instructions were received by letter, copies of relevant correspondence
- If instructions were received during a meeting, a statement as to where and when the meeting took place and who else was present
- How the instructions were expressed
- Contemporaneous notes of all other meetings and telephone calls
- Whether the will writer was made aware of any medical history of the deceased that would impact his capacity to make a will and the nature of that medical history
- Whether the deceased showed any signs of confusion or loss of memory
- Whether earlier wills were discussed and whether conversations were made to discuss departures from his earlier the reasons given for making any such departures
- How the provisions of the will were explained to the deceased
- Apart from the witnesses to the will, who was present at the execution of the will as well as where, when and how the execution took place
As well as providing an account following the above areas, the will writer also has to provide copies of any other documents relating to the instructions for the preparation an execution of the will or confirm they have no objection to an inspection of the file on reasonable notice.
As a starting point for challenging the validity of any will, this goes a long way to determine the strength of a claim challenging the validity of a will. It is particularly useful to establish whether the person preparing the will undertook the correct test for testamentary capacity and whether the information disclosed may support an allegation that the deceased was subject to undue influence when preparing their will.
Contact us
If you need support when resolving a dispute, contact Katie McClean with our Dispute Resolution team, via e. KatieMcClean@rixandkay.co.uk or t. 01273 766 929
