Defending a Contested Will: Advice for Executors and Beneficiaries

Being told that someone intends to challenge a Will can leave you unsure whether to respond, pause the administration of the estate or gather evidence. The right steps depend partly on your role: an executor’s responsibilities differ from a beneficiary’s interest in defending a contested will.

This guide explains what to do when a challenge is raised, how to protect the estate while it is unresolved, and what to consider before deciding whether to defend the will or seek a settlement.

Someone is challenging a Will, I need to defend it 

Assuming you are either an executor, Will writer or beneficiary, it would be prudent to ask for some more detail regarding the Will challenge, for example, the heads of claim, background and evidence a prospective claimant has in support of their claim.  

A Will writer needs to establish whether there is a serious dispute as to the validity of the will, in order to consider whether the principles of Larke v Nugus are invoked (to consider departing from their duty of confidentiality and release a copy of the will making file).  

An executor has a duty to propound a will that they are named under, unless there is compelling evidence to suggest it is not valid. Establishing the early prospects of the matter will help shape the next steps.  

However, the most likely ultimate defendant will be the residuary beneficiary, who again, will want to understand the nature of the case they may face, as well as commence preparing their defence and gathering their evidence.  

Do I need to stop dealing with or distributing the estate while the Will is being challenged? 

Not necessarily: as an executor  who needs to defend a Will challenge, assuming there is a credible claim with supporting evidence, it is important that the estate is preserved while any challenge is pursued and defended.

For example, it may be prudent for a limited grant of probate to be obtained, allowing an executor to collect assets in and meet any debts or liabilities, to include inheritance tax, mortgage or even the sale of an estate asset to introduce liquidity, without any distributions being made to any of the beneficiaries.  

What happens if the person challenging the Will has entered a caveat? 

A caveat prevents a grant of probate from being issued. It is used by prospective claimants to give them time to undertake their investigations, without the threat of estate assets being distributed.  

If facing a caveat, it is prudent to ask the caveator on what grounds they are maintaining the caveat, along with evidence in support of their rationale or claim.  

If the response is unsatisfactory, a warning can be issued to the caveat.

It means that the person who has lodged the caveat ("caveator"), has to respond within 14 days to either make the caveat permanent and set out their summary grounds for doing so, or, issue a summons, asking for assistance from the Probate Registry.

If a caveat is made permanent, it can only be withdrawn by a formal agreement between the respective parties, or by an order of the court.  

If the caveator takes neither of the above steps after 14 days of service, an application can be made to remove the caveat, so probate can be obtained.  

Defending the Will as an executor or a beneficiary 

If I am the executor, should I defend the Will or not? 

Unless a beneficiary indemnifies an executor to defend the claim (i.e. pays or agrees to pay their legal costs) normally there is no financial benefit for an executor to defend a Will.

They would simply expose themselves to the risk of an adverse costs order if they actively defended the claim and the lost. The active defence of a Will challenge is normally for the residuary beneficiaries.  

Only potential anomaly may be where the executors would be the trustees of a discretionary trust, that would only come into existence once the estate is administered.

In those circumstances, the potential objects (i.e. potential beneficiaries) are not best placed, given their lack of a fixed interest. Executors in those circumstances ought to seriously consider defending a claim and should seek immediate legal advice.  

What changes if I am both an executor and a beneficiary? 

If you are the sole executor and sole beneficiary, then the position is largely moot from a cost perspective.

Of course, that may not stop a beneficiary under an earlier Will seeking to remove the executor, if they feel that the estate is not being adequately administered while the dispute is ongoing. However, that situation may be less likely, as the residuary beneficiary would ordinarily have a financial interest in ensuring that the estate is preserved as best as possible.  

The position becomes more complex where a party is an executor, but only a partial residuary beneficiary.

As a beneficiary, do I have to take part in the dispute to protect my inheritance? 

A beneficiary does not have to defend a claim, albeit if there is only one beneficiary and they decide not to defend the claim, then they would lose their entitlement. Of course, where there are numerous beneficiaries, not all have to join in any defence, albeit if court proceedings are issued, then a decision needs to be made whether the claim will be defended, accepted or a neutral stance adopted.  

Can several beneficiaries defend the Will together, or should we have separate solicitors? 

It is normally sensible for equal residuary beneficiaries to come together and instruct one firm, given their shared interest in defending a claim.

Of course, they should also check their position under the earlier Will. If beneficiaries receive unequal amounts under a challenged Will, it is sensible for an agreement between them to be reached as to how any settlement sums may be distributed, in the event of a negotiated settlement. Ordinarily, it would be pro-rata but it may depend on the agreed funding position between them.  

How do I work out whether the Will can be defended? 

What evidence do I need?

Obtaining and securing contemporaneous evidence is important, for example, the Will making file, medical records and signed statements from the witnesses to the Will. 

Witness evidence from friends and family can be helpful, albeit it may only need to be urgently obtained if there is a risk it could not be obtained later, for example, if a witness is ill, or may move away.  

How to assess the strength of allegations

Our expert team of Contentious Trusts & Probate solicitors led by James Wallace, deals with Will challenges on a daily basis from all perspectives, including challenges, defences and assisting executors when in the middle.

Given their knowledge and experience, an early assessment of the available contemporaneous evidence ought to allow for a view to be provided on the prospects of success or failure, as well as sharing a suitable strategy to seek to achieve a client's objectives.  

What happens if evidence supports the Will rather than the challenge? 

Of course, these are only two sources of information. There are other sources of evidence that could counter balance such evidence, for example, a retrospective report on testamentary capacity from an expert, or a signed statement from the Will writer; they can help negate the impact of the medical records or Will making file respectively.   

There are of course other types of available evidence which could support a defence, for example, witness evidence from the witnesses to the Will, family or friends, as well as the testator's own correspondence, whether written or electronic, as well as those between the relevant parties.  

What will defending the Will mean in practice? 

Who pays the legal costs of defending a contested Will? 

If the courts are required to determine the validity of a Will, ordinarily, the losing party pays a proportion of the the winning party's costs. However, conduct as well as certain offers made, can invert the cost position. 

However, there are two special cost rules in probate claims; namely, where the testator was the cause of the litigation, the estate can pay the party's costs, or where the circumstances warranted an investigation, for a certain period of court proceedings, the court may order each party bears their own costs.  

Before the court is involved, there is no mechanism or rule to force one party to pay the others; normally an agreement on who pays the costs is reached during a negotiated settlement.  

How can executors protect valuable assets while the dispute is unresolved? 

While a Will dispute in ongoing, securing a limited grant of probate is normally the most sensible way to protect estate assets. Of course, much will turn on the nature of the estate assets; for example, for a farm, a farm manager may need to be installed, or where there is a limited company, the articles of associated checked to see if the estate is able and should appoint a director.  

Is it better to defend the Will in court or try to negotiate a settlement? 

A negotiated settlement provides considerably more flexibility as to the terms of any settlement, as the court determining a Will challenge will result in a binary outcome; either the last Will is valid, or the earlier Will is, so whichever is valid, its terms must be followed.

Ordinarily, a negotiated settlement will take place once there has been a sufficient exchange of information, such that costs are considerably lower than if the court is required to determine the matter at a final hearing.  

Of course, if one party has an unrealistic expectation which is not based on the legal merits or costs risks, then taking a matter to a final hearing may be the only way to resolve the dispute.  

Consequences of ignoring the challenge or responding without taking legal advice 

Ignoring a challenge is likely to only strengthen a prospective claimant's resolve to proceed. Responding without the benefit of legal advice is possible, albeit a defendant may inadvertently prejudice their own position or defence.  

Reaching an outcome 

What should I take to a solicitor if I need advice about defending a Will? 

It is unlikely that a prospective defendant will have all of the available contemporaneous evidence to provide at the outset, so a clear memory of the facts that they are aware of, and willingness to share all information, is helpful and sensible to provide to a solicitor.

Of course, if the will making file and medical records are available, providing those will maximise the benefit of an initial meeting about the prospects and strategy for defending a Will.

Need advice on defending a contested Will?

A challenge does not automatically mean that a Will is invalid. Its prospects will depend on the grounds raised and the evidence available. Getting advice early can help you understand your position, preserve relevant records and avoid decisions that could complicate the dispute.

If you are an executor or beneficiary facing a Will challenge, our contentious trusts and probate team can advise you on the next steps, including defending the will and exploring a negotiated resolution.

Contact Our Solicitors