With wills proving to be sources of legal disputes among inheritors/non-inheritors, the author of this article explains how conflicts arise, how to avoid them, and how to manage any clashes.
More wills are being contested these days, so it is important for private client advisors to understood how clients can avoid conflicts or, if they occur, to manage them as efficiently as possible. With intergenerational wealth transfer a constant theme in the background, contesting a will is clearly a major topic.
To shed light on what is happening in England Wales (there are different rules in Scotland) is David Draisey, a partner at Hunters, a London-based law firm. The editors are pleased to share these insights; the usual editorial disclaimers apply. Please treat these articles as part of a conversation and get involved if you wish to do so. Email tom.burroughes@wealthbriefing.com and amanda.cheesley@clearviewpublishing.com
Inherited wealth is important as a source of financial support to a growing number of beneficiaries. It is therefore unsurprising that inheritance disputes in the UK continue to see a notable increase, with an estimated 10,000 individuals seeking to contest wills each year. According to the latest Ministry of Justice statistics, the Chancery Division of the High Court dealt with 122 contested probate claims in 2023, up from 116 cases in 2022. 1
So, why do people contest wills?
The reasons are diverse. Many claims allege that the testator did not retain testamentary capacity at the time their will was executed. Some cannot accept that the contents of a will reflect the genuine wishes of the testator, whom they believe must have been unduly influenced. Others may argue that the will does not make reasonable financial provision for them, and they should be entitled to more.
The testator may also play a part in creating false impressions about how their estate will be distributed. It is not uncommon for different beneficiaries to be told contradictory things: the testator tells them what they want to hear, rather than the truth. Unwittingly, this can put those beneficiaries at loggerheads after the testator's death as their expectations of inheritance do not align with reality.
When the parties to a will dispute have lost a loved one, the emotional temperature is high: anger, resentment, fear, and anxiety are exacerbated by the inevitable grief and loss. In some disputes, the testator's money is viewed as "family money." If, for example, everything is left to the cleaner, the will must be challenged because it would otherwise result in the "injustice" of wealth not being left to relatives. Sometimes, enduring issues may exist between family members and contesting a will allows them to play out their conflicts through the legal system.
But not every will can be challenged; the number of valid reasons for doing so are finite. Perhaps the most common is lack of testamentary capacity: the testator was not mentally competent to execute their will. Other common reasons include: the will was not executed properly, the testator did not understand the contents of the will, or undue influence is suspected.
It is imperative to determine which challenge is applicable in each case. Simply being upset with the contents of a relative's will because it seems unfair does not automatically mean that a legal remedy exists.
Although there are no specific reasons why a will cannot be contested, there are certainly circumstances when it should not be. There are ways to mitigate (but not eliminate) the possibility of a claim arising.
For example, where there are subsequent suspicions of a lack of testamentary capacity, a contemporaneous report from a suitably qualified expert giving their opinion on capacity (and ideally witnessing the execution of the will) will make any claim on this basis after the testator's death extremely difficult. There may be practical reasons not to challenge – there is no point looking to set aside a will if the penultimate will left the challenger no greater financial benefit.
The process of challenging a will varies according to the type of claim. Every claim typically begins with a formal letter alleging a will is invalid, explaining the legal and factual basis for the claim. This letter will be sent to the executors of the estate and the named beneficiaries.
In any dispute, the executors should adopt a neutral position. The would-be claimant's opponents will be the beneficiaries of the last will since they stand to benefit from upholding its validity. Settlement negotiations frequently (and rightly) occur before any court proceedings begin with many disputes being resolved at this stage. In circumstances where many will challenges involve disputes between family members, an early settlement provides the best opportunity for the parties to salvage their relationships in the long term. For those claims that cannot be settled, proceedings will need to be issued at court and – should settlement not be reached in the interim – resolved at trial.
Typically, will challenges are brought by those who took greater benefit from the testator's penultimate will (or their intestacy), as opposed to their final will. No specific time limit applies to bringing such claims, but for pragmatic reasons they should be advanced as soon as possible. For example, if a grant of probate is obtained and the estate's assets are distributed, it will be more difficult to recover estate assets should their challenge be successful.
Individuals can also challenge a will on the basis that it has not made reasonable financial provision for them. Such claims are only open to specific categories of applicant, including a spouse (or former spouse), the child of the testator (or someone "treated" as a child of the testator), or a person who was being "maintained" by the testator. These claims must be issued at court within six months of the date of the grant of probate for the estate, although the court has sometimes had cause to considerably extend this deadline.
The chances of success will vary: it is impossible to make generalisations since every case turns on its own particular facts. Before embarking upon a potentially protracted and stressful process, those who wish to contest a will should take advice at an early stage to ensure that their claim has a sound legal basis.
Footnote
1 https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2023/family-court-statistics-quarterly-october-to-december-2023#probate-service
Originally published by WealthBriefing
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
