Defending an invalid Will challenge against a charity
When trustees are considering defending an invalid Will challenge against a charity, they should take specialist legal advice from contentious probate experts so that they are able to satisfy their duties.
Invalid Will challenges
The validity of a Will can be challenged on a number of different grounds. The most common grounds for challenging the validity of a Will are:
- Undue influence
- Lack of testamentary capacity
- Want of knowledge and approval, and
- Fraud
When a charity is a beneficiary under a Will that is being challenged on the basis that it is invalid, the trustees should assess the individual merits of the case to ascertain what course of action is in the charity’s best interests. In particular, trustees need to have regard to their duties to protect the legacy, limit exposure to legal costs, and manage the charity’s reputation.
When an invalidity challenge is made the claimant will be required to identify the grounds upon which their case is based, and the evidence relied upon. The evidence will vary from case to case and the particular grounds cited, but commonly includes:
- Medical reports
- Witness statements
- Care and medical records
- The solicitor’s Will preparation file
Trustee’s duties
The Charity Commission requires trustees to act in the best interests of their charity, and this includes protecting legacy income.
However, this duty must be balanced against competing duties to minimise the risk of exposing the charity to legal costs, and to explore ways of resolving the dispute through negotiation or mediation.
It is good practice for a cost/benefit analysis off the case to be carried out, ideally with input from a specialist contentious probate solicitor.
We would also recommend that trustees document the decision-making process, recording their reasons for defending the invalid Will challenge or, alternatively, why they decided to concede the case,
An invalid Will challenge checklist
When contemplating defending an invalid Will challenge against a charity, trustees and their solicitors should consider a range of issues, including:
- Whether the claimant has grounds to challenge the validity of the Will
- What evidence the claimant has to support their challenge
- What the value of the estate is
- What the value of the legacy is
- Whether the charity is a beneficiary under any previous valid Will
- What associations the testator had with your charity
Mediation and risk reduction measures
If the challenge goes to trial and the claimant is successful, then the Will shall not take effect. The estate will then pass in accordance with any previous valid Will, or under the intestacy rules if there is no valid Will.
However, while the outcome is therefore ‘all or nothing’, there are still likely to be opportunities to reach a compromise prior to a final hearing. This is particularly the case where the case is finely balanced and could go either way.
Mediation, which is favoured by the Charity Commission, is particularly effective, and our team is highly experienced in resolving contentious probate disputes in this way.
It may also be possible to limit the charity’s exposure to costs by working with other charitable beneficiaries and sharing the expense.
No Win, No Fee funding
Where there are reasonable prospects of defending an invalid Will challenge against a charity, our experienced team of contentious probate lawyers will be happy to consider working on a No Win, No Fee basis.
We believe we are one of only a very few specialist firms to offer No Win, No Fee funding to charities wishing to defend an invalid Will challenge.
No Win, No Fee funding can be particularly attractive to trustees who are concerned about fulfilling their duty to limit the charity’s exposure to legal costs, and who wish to avoid criticism.
When dealing with an invalidity challenge on a No Win, No Fee basis it is important for us, and for you, to be absolutely clear about what outcomes will constitute a ‘win’. We will therefore start by assessing the challenge free of charge, before going on to discuss your expectations and objectives with you, and explaining how No Win, No Fee funding will operate in your particular case.
Free legal helpline
If you would like to talk to us defending an invalid Will challenge, then contact us by emailing [email protected] or phoning us free on 0333 888 0439.
