Defending a contested will

Successfully defending a contested will

Defending a contested will claim calls for specialist legal advice. We are highly experienced in defending inheritance claims and have a proven track record of success. Contact us for a free case assessment by phone or email.

This is a brief case study of a contested will claim we recently defended which illustrates of the sort of work our Legal 500 recommended contentious probate team undertakes on a day-to-day basis on behalf of executors and beneficiaries facing an inheritance claim. We resolutely defended this contested will claim all the way to trial. The outcome, we are pleased to say, was highly favourable to our clients.

The facts of the contested will claim

An Inheritance Act claim was brought by widower, Lionel Whiteley, against his late wife’s estate.

His wife, Christine Whiteley, had made a will a few months before she died. The bulk of her estate was divided into shares, with 5% going to Lionel, 47.5% to her son Barry and 47.5% to her daughter, Susan. It appointed Barry as the sole executor.

Christine and Lionel’s marriage had been a turbulent and unhappy one. Accusations of both physical and mental abuse had been made by Christine against Lionel. At one stage, Christine and the two children went to a women’s refuge and Christine later obtained a Non-Molestation Order against Lionel.

Christine’s parents structured their affairs to ensure that Lionel would not benefit from their assets when they passed away.

Our instructions

When Lionel first advanced his inheritance claim, Barry appointed a firm of Solicitors to defend the claim. However, Barry was unhappy with their advice and the service he received. He then consulted ourselves and we were appointed to act for both him and his sister in defending Lionel’s claim.

The claimant’s case for contesting the will

Lionel’s solicitors relied heavily on what is known as the “Divorce Hypothesis”. They argued that he ought to receive 50% of the estate, if not more, which is what he could have expected to receive if the couple had divorced.

When the court considers a claim under the Inheritance (Provision for Family and Dependants) Act 1975 by a surviving spouse it will take into account what might have happened had the couple divorced. The Act states:

the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce”.

This provision usually means that the surviving spouse is entitled to 50% of the marital assets. However, that share is not fixed. it can go up or down, depending on the circumstances of the case.

Defending the contested will claim

We based the defence on three key points:

  1. That Lionel had been reasonably provided for in the will and given the unhappy marriage and the abuse, no further provision should be made to him;
  2. That, when calculating the value of the estate, the court should discount the joint account held by Christine and Barry and the assets which were inherited by Christine from her parents, on the basis these were not “marital assets”;
  3. That Lionel’s entitlement to receive state benefits would be adversely affected by an additional award from the estate and that any award should therefore be limited to the state benefits maximum cap of £16,000.

The court’s decision

Lionel was adamant that he should receive at least 50% of all the assets. The case therefore proceded to a contested trial. This was a little unusual as in most inheritance disputes it is possible to resolve matters out of court, but in this instance each side had very different views of the case and the only way of resolving the dispute was for the court to decide.

Fortunately for our clients, Barry and Susan, the trial judge agreed with us that Lionel should not be entitled to receive 50%+ of the estate as he had claimed.

The judge limited Lionel’s claim to a net figure just short of £16,000. This equated to a share of around 15%; far less than Lionel’s solicitors had been seeking.

Lessons to be drawn from defending a contested will

The court’s judgment is interesting for three reasons.

First, despite the Judge being heavily critical of Lionel’s evidence and accepting that the marriage had been an extremely turbulent and unhappy one due to Lionel’s conduct, this had little impact on the award. Conduct is increasingly being seen as an issue of little importance in Inheritance Act claims.

Second, of far more importance to the award was the Judge’s decision to disregard the funds in the joint account and the funds inherited by Christine from her parents. This reduced the value of the estate from around £126,000 to around £40,000. It was this lower figure which was then subjected to the “Divorce Hypothesis”, rather than the larger figure. This had a substantial impact upon the outcome.

Third, whilst the Judge did not directly address the issue of Lionel’s state benefits, nor was it flagged up as one which had any particular bearing on the decision reached, it is notable that the amount which Lionel was ultimately awarded is just below the £16,000 cap.

The costs of defending a contested will claim

When defending a contested will or an Inheritance Act claim it is advisable to carefully consider the impact of legal costs.

Legal costs have an important bearing on most court cases and decisions are often based on costs considerations rather that pure law.

In contested will claims the legal costs can often become disproportionate to the value of the estate. The parties themselves also face personal costs risks and those defending a contested will need to be particularly careful.

While the default position is that the loser pays the winner’s costs, the claimant only has to receive a small award to be seen as the “winner”.

How a party defending a contested will claim can acquire costs protection

Accordingly, strategies to acquire costs protection for the defendants need to be formulated.

In this case, Barry and Susan succeeded in not only protecting the majority of their inheritance from the claim itself they also protected it from a substantial costs award.

By making a well-timed and sensible settlement offer on our advice they acquired costs protection. Because their offer had been rejected by Lionel the court ordered him to pay his own legal costs from the date the offer expired. This is likely to be a very considerable sum, impacting significantly on his award.

How we can help you

We specialise in defending contested wills and you will find lots of useful resources on this website, including this guide on How to Remove a Caveat.

If you are defending a contested will then call our legal helpline for a free assessment and case funding options. Call us on 0333 888 0407 or email us at [email protected]


Defending a contested will