Why are more people contesting Wills than before?

Avoid a will challenge
A claim made against an estate is referred to in practice as a contentious probate claim. Lawyers are seeing a growing number of such enquiries and an increasingly litigious attitude – one in four people now say they would challenge a will if they were unhappy with the division of assets (The Gazette, 2019). We look at the reasons for the increase in claims, and what you can do to avoid your own Will being challenged.

The bulk of contentious probate claims fall into two categories: adult children who have been disinherited (or left less than they were expecting), and cohabitees who are inadequately provided for by the law. Of note, a large number will settle outside of Court and are therefore not reflected in court statistics but are reported by individual firms specialising in this area. The number of caveats entered against estates (preventing probate from being issued while a dispute is raised) is more telling of the scale of claims: over 8,000 were registered in 2017 alone (The Gazette, 2019).

Multiple reasons have been cited for the increase in claims.

First, the size of estates has soared, particularly with growing property prices. The average house price in January 2005 was £150,633; this grew to £234,370 by September 2019 (UK HPI). This makes the prospect of claiming more attractive.

Second, the population is living longer (ONS) and consequently parents are finding that their children are already financially sound and in less need of inheritance. An aging population also means a rise in Dementia rates (Alzheimer’s Society) with age the strongest risk factor (Alzheimer’s Society factsheet). This means clients are making Wills in poor health leaving them open to challenge.

Thirdly, family structures are changing. Divorce rates are dropping (ONS) but this is thought to relate to an increase in cohabitation (ONS). Divorce and remarriage, cohabitation and families living further apart have all lead to more complex family structures, increasing the likelihood of arguments. On this point, the frequency of estrangements is reportedly growing (Ipsos Mori) and parents may feel more inclined to exclude the estranged child.

A fourth reason is a greater awareness of legal rights due to the abundance of information on the internet. For example, the Ilott case was heavily reported in the media. In 2017, there were 80 contested probate cases, a similar number to 2016 statistics (77 cases). 164 cases were brought in 2015 and 178 in 2014. In 2013, 97 claims were made in the High Court, 88 of which came under the Inheritance Act (MoJ). The publicity of the Court of Appeal’s decision to increase Heather Ilott’s award may have had a bearing on the spike around that time.

Finally, the drafting of Wills is an unregulated area. There are countless unregulated companies offering their services in person, online or via free templates. With ‘DIY’ or online Wills, there is often no check by a solicitor and no solicitor’s notes recording the client’s instructions or commenting on their mental health. This makes them more susceptible to challenge.

The increase in probate claims and in particular, the uncertainty of Inheritance Act claims outcomes mean that firms like our own which offer will-writing services must keep up to date with the latest contested probate cases and adapt their advice and practices accordingly. To take one example, it is inadvisable (and contrary to Law Society Guidance)  for beneficiaries to be present or involved in the will-writing process; where they are, contentious probate lawyers will know that this assists a claim for undue influence or want of knowledge and approval.

Having experience of contested Will cases puts us in a unique position to ensure that, as far as possible, such risks are avoided and our clients’ wishes are carried out.

Further, an understanding of overlapping areas of law such as tax, family and property is essential if any lawyer is to comply with its obligations under principles in the SRA Code of Conduct. Matters outside of the field of will-writing, such as the lack of a consent order containing a ‘clean break’ clause, can lead to a future Inheritance Act claim. The order should state that each party has no right to make a claim against the other’s estate. As lawyers for the family with a range of legal expertise, this is something we always check for where we meet a client who has been divorced previously.

The benefits of using a regulated lawyer-managed firm

With a growing number of claims, choosing a firm that has expertise across a range of family and estate planning areas is beneficial. It is also why choosing a process managed by a regulated lawyer such as a Solicitor, Chartered Legal Executive or STEP practitioner can be an advantage – such lawyers cover a broad range of topics as part of their training, before choosing their specialisms.

It is important to appreciate that just because a Will writer is a member of the Society of Will Writers or the Institute of Professional Will Writers, does not mean they have the same expertise as a Solicitor, Chartered Legal Executive or STEP-practitioner (TEP). In fact, you can join the SWW or IPWW with a qualification that is equivalent to a single A-level. Further, a Will-writer’s membership of these bodies does not necessarily give clients the right to complain to a professional regulator such as the SRA or the Legal Ombudsman if something should go wrong.

April King offers a regulated lawyer-managed process, with our team of Solicitors, Chartered Legal Executives and specialist Trusts and Estates lawyers led by STEP Practitioner Paul King. Our clients have confidence in our services because they are delivered by professional lawyers who at all times adhere to their Regulators’ codes of conduct.

Further, against the many options for making a Will, using an experienced lawyer ensures there is more background information to inform a Court faced with an Inheritance Act claim. It may also help to stave off other types of claims, for example by demonstrating that the client had testamentary capacity, was not under any undue influence and understood the Will’s contents. A lawyer’s comprehensive notes are crucial in such instances.

In addition, the fact that an experienced lawyer was used creates certain presumptions: in Hawes v Burgess* the Court of Appeal stated that the court should not upset a will prepared by an experienced will-writer and should be cautious of retrospective capacity assessments. Additionally, experienced lawyers will always ensure the Will is drafted and executed properly, again reducing the likelihood of a claim for lack of due execution.

We offer a free information pack and a free one-hour appointment to discuss your Wills and Lasting Powers of Attorney, without obligation. Complete the form below to get your pack, call 0800 788 0500 or email support@aprilking.co.uk

* Hawes v Burgess [2013] EWCA Civ 94.

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