Secure the testamentary documents (wills, codicils and any draft wills). Those will need to be lodged with the court in the case of a dispute. It is possible to administer the estate without the original will, but far more difficult.
Interview witnesses early. Any medical evidence will be more compelling if the doctor remembers the testator, and evidence from the witnesses to the will is only helpful if they can remember what took place. It is easy for an honest witness to become unhelpful if their memory has faded.
In any will dispute it is particularly important to be cautious of false memories. These disputes are highly emotive, and witnesses who have re-run the events in their minds can unintentionally create memories that are genuinely held but false or inaccurate.
Focus on the most important evidence
It can be very easy for any investigation into a disputed will to range widely into everything the testator did over many years, or even decades. It is important to focus on the strongest evidence and the most important documents.
Judges have been consistently clear that contemporaneous documents are the best evidence. Notes by solicitors or other independent professionals are the strongest since they are likely to be unbiased, especially if they were prepared without any dispute in mind.
If the will was prepared by solicitors, their file will often be the best place to start, and there is a specific process to obtain it called a Larke v Nugus letter. Even if the solicitor did not make notes about the deceased’s mental capacity, the file will show whether a proper process was followed.
It can be tempting to obtain posthumous medical evidence, based largely on a review of medical records, but it is worth considering how much that evidence will add to the case. A doctor’s opinion after the patient has died is unlikely to be persuasive unless the position is very clear, and if the position is clear, is additional medical evidence necessarily going to add anything?
But while you should focus carefully on the key evidence, you should also be prepared to be creative and tenacious. Wills and estates can be the subject of elaborate frauds and there are numerous experts in handwriting, document analysis and forensic accounting who can be deployed to work out the truth of what has happened.
Stay calm
Will disputes are exceptionally emotionally challenging, and even the smallest disputes can escalate into the “legendary hatreds” described by Charles Dickens' Jarndyce v Jarndyce case in Bleak House.
Although understandably difficult not to rise to provocation when the opposing party is being unreasonable, maintaining a rational approach and a reasonable tone will minimise costs while maximising the chances of success. The reason is simple: judges prefer reasonable parties and are more likely to believe their evidence and follow their arguments.
