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A rise in Probate Disputes

There has been a steady increase in inheritance disputes over the last few years, from Ilott v Mitson in 2015 to the recent Weisz V Weisz & Ors S5 claim under the Inheritance (Provision for Family & Dependants) Act 1975. What’s more, these cases are increasingly finding their way into the national press, and clients are therefore becoming more concerned that their hard-earned cash could end up earmarked for legal fees. In the Weisz V Weisz & Ors case, for example, it is reported that costs are estimated at £74,000 for a one-day hearing!

In 2018, the High Court recorded a staggering 30% more probate disputes than in previous years. Christina Blacklaws, President of the Law Society, commented, “with the range of different estates and circumstances that exist, it is vitally important people consult a professional when writing their Will. Probate law is complex and DIY wills can easily contain mistakes which render them illegitimate or difficult to administer”.

So, what can clients do?

The first step is to try and pre-empt any potential disputes. While it is impossible to prevent someone from challenging a Will or making a claim, the following steps may help:

1. Have a professionally drafted Will. A professionally drafted Will should minimise the chance of errors and avoid words that might be construed in different ways. Notes from the instruction taking meeting will record why a testator opted to have their will drafted in a particular manner. These can be used as evidence if a will is challenged; the explanation they offer might even dissuade a confused family member from pursuing litigation, in the first place.

2. Create a ‘letter of wishes’ – this offers further explanation of the testator’s rationale to those who are confused by or uncertain of the Will’s contents.

3. Making the right call regarding the appointing of executors. A bad call would be to appoint relatives who do not get on: this can provide rocket fuel to any dispute.

4. Being open with family members regarding the contents of a will can also help manage people’s expectations of inheritance. Anyone with an axe to grind might then raise their displeasure while the testator can still do something about it.

5. Documenting early distributions in order to minimise any misunderstandings later. People do forget assistance provided by family members, especially if it was given years ago; disputes often arise where one party feels that another has benefited unfairly.

It may also be worth refreshing your knowledge on when a claim or dispute may arise:

  • Lack of capacity – If the deceased did not have the required level of understanding to make a Will then the document can be challenged. If this challenge is successful, the Will could be set aside. Medical records, evidence of witnesses, and attendance notes will need to be obtained. If the Will was professionally made, then the circumstances surrounding the making and signing of the Will can be requested by the challenging party (using what is commonly known as a ‘Larke V Nugus’ letter).

  • Undue influence – This is when the deceased was under pressure to make a Will. Often, these disputes arise where the testator was elderly or vulnerable. Such cases are difficult to prove; evidence will need to be collected by the family and the witnesses to the Will.

  • Lack of sufficient knowledge and approval – this can occur when the deceased did not fully understand or appreciate the terms of the Will.

  • Fraud or forgery – A forged Will is generally a document that has been made without the knowledge or consent of the deceased. Again, proving that forgery has occurred is difficult. The outcome will rely on the evidence.

While APS Legal & Associates do not offer a contentious probate service, we do have a panel of solicitors who specialise in this very complex area. It is worth remembering, though, that prevention is always better than a cure!

Written by Erica Hancock, Probate Services Director at APS Legal & Associates (February 2020)

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