The rise of Probate Disputes

The last 5 years has seen probate disputes in the High Court increasing year after year.

Many people assume that when someone makes a will the will is final and beneficiaries and family members are stuck with it.  However, more and more people are now beginning to challenge wills.

What are the grounds for challenging a will?

There are many different grounds to challenge a will.

The first step is to establish that you or the person challenging the will has a legal right to do so. Valid reasons to contest a will include:

  • Lack of due execution – that the will did not comply with the formalities of a valid will pursuant to Section 9 of the Wills Act 1837.
  • Revocation – that the will has been revoked by marriage, another will, something in writing declaring an intention to revoke, burning, tearing or otherwise destroying the will with the intention of revoking it.
  • Lack of testamentary capacity – the person making the will must have had mental capacity at the time of making a will.  The test of mental capacity is often challenged where older people change their will and their mental capacity, maybe through illness, comes into question.
  • Lack of knowledge and approval – the person making the will must know and approve of the contents of the will.
  • Undue influence – there will be undue influence if the person making the will was coerced into making a will that they do not want to make.  

What if the will is valid but does not give reasonable financial provision for me?

Even if the will is valid, certain relatives and dependents can challenge the division of the estate under the will (or the rules of intestacy) by claiming under the Inheritance (Provision for Family and Dependants) Act 1975 that it does not make “reasonable financial provision” for them. The number of cases in this area has increased considerably over the last decade.

There are certain statutory criteria that the court must take into account when considering a claim for reasonable financial provision and these are:

  • The financial needs and resources of the beneficiaries and applicant(s).
  • Any obligations and responsibilities that the deceased had towards any applicant or beneficiary.
  • The size and nature of the estate.
  • Any disability (physical and mental) of any applicant or beneficiary.
  • Any other matter, including the conduct of the parties.

Why are probate disputes increasing?

There are several factors which explain why the number of cases is on the increase:

  • People are now living longer and the increase in life expectancy means that wills are sometimes made and changed later in life. Changing wills at an older age can lead to concerns as to whether the person had mental capacity or whether there was some illness which had an impact on their ability to make a will/change their will.
  • The increase in property prices over the years has resulted in estates being worth more than they have been historically and with more money “in the pot”; people are willing to challenge each other over entitlements.
  • Family set ups are increasingly more diverse and complex e.g second spouses and children from first marriages are all likely to expect to benefit from a will.  When one party is left more than the other or not left anything at all, then challenges can arise.
  • DIY wills are said to play a large role in the increase in probate disputes.  Whilst they are legal and initially a cheap option, drafting errors can lead to your wishes not being followed or can cause confusion and can result in costly applications to the court to clarify the terms of the will. 

What can I do to prevent a future claim against my estate?

It is always best to use a professional to draft your will to ensure that the will is valid and correctly reflects your wishes.  They will also be able to advise you on any risks of litigation by unhappy family members, beneficiaries or these that have been left out and what you can do to mitigate this.

Disputes over a will can be complex and daunting.  We have the expertise to deal with estates and claims of all shapes and sizes in a sensitive and professional manner. Regardless of your situation, we are happy to help.

To find out more please call Nasima Ansary on 020 82590 7326 or email to discuss your situation.

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