Probate is where a deceased person’s will is proved in a court of law but what happens when wills are disputed? Clare Mackay, Associate at SA Law, explains in personal finance publicaton The Money Pages.
Probate claims are rising, headline cases in the news are the just tip of the iceberg, with many probate disputes settling well before trial. The proliferation of cases is the result of many factors.
Unlike many other jurisdictions, English law allows testators (people who make a will) to leave their worldly goods to whomever they choose, i.e. family members, friends or the local dogs’ home. It’s easy to see how this can lead to disappointment and feed concerns that something has gone awry.
Why has there been an increase in probate disputes?
- Sadly, the Covid-19 pandemic could lead to a further increase in probate claims, particularly if a loved one’s death was sudden and unexpected, without time for a will to be drafted and affairs put in order.
- Complex families:Family units are increasingly complex. Wills made following a second marriage can create a tension between the second spouse, the testator’s children from their first marriage and their stepchildren. If there’s no will, unmarried cohabitees receive nothing from the estate under the intestacy rules.
- Online search engines make it easier to prepare a will without the benefit of legal advice, with the risk the resulting will is wrong and doesn’t make the gifts intended.
- Property prices have increased exponentially throughout the country in the last 20 years, meaning estates comprising just the family home are now worth a significant amount. Disappointed would-be beneficiaries are more likely to invest time and money into a dispute over a significant asset.
- There’s also the human factor. Many probate disputes are about much more than dividing up financial assets. A death can bring long held grievances within a family to the surface, making litigation more likely.
Challenging a will
A disappointed would-be beneficiary has a number of potential avenues to challenge a will or to seek financial provision from the estate of a loved one.
- Spouses, civil partners, cohabitees, children, persons who were treated as a child of the family or and persons who were being maintained by the deceased may have a claim under the Inheritance (Provision for Family and Dependents) Act 1975. Such claims can be made if the deceased’s will (or the intestacy rules if the deceased died without making a will) fail to make reasonable financial provision for such a person. The Act isn’t designed to hand out windfalls or to undo what is perceived as a grave injustice of being left out of a will. It’s a question of looking at what reasonable financial provision should be made for the claimant.
- Check the will has been validly executed. It must be signed by the testator in the presence of two witnesses, who must also sign the will in his or her presence. If there are doubts about the testator’s signature, contact the witnesses to confirm this was done.
- Consider whether the testator had testamentary capacity to make the will, particularly if there was a history of mental illness or dementia around the time the will was made.
- Investigate whether the testator knew and approved the will’s content drawn up on their instructions.
- Think about persons close to the deceased. Is there any suggestion the deceased might have been unduly influenced to make the will or acting under duress to do so?
- Leaving aside the will’s wording, were promises made by the deceased, upon which someone has relied to their detriment? A classic example would be the promise of gifting a property in return for giving up work to care for the deceased. If that gift doesn’t materialise in the will, there may be a claim for proprietary estoppel (a legal claim).
- Check whether assets form part of the estate or automatically pass by way of survivorship to the joint owner – particularly property and bank accounts.
- If the issue is with certain wording of the will, it may be possible to apply to Court to get the will rectified to reflect the testator’s true intentions.
Things to consider when making a will
A testator can take steps to reduce the risk of their estate being fought over. Having difficult conversations to manage expectations is a good starting point – if someone knows they will not inherit a significant sum and understands why, they are less likely to contest this decision than if this comes as a nasty surprise.
If that is a conversation that cannot be had, the testator can explain their thinking in a letter of wishes, held alongside their will. This document isn’t legally binding but gives the testator a chance to explain the reasoning behind their decisions. Such a letter may make a disappointed family member think twice before challenging a will.
Probate claims compound an already difficult time, following the loss of a loved one. Would-be litigants need to be prepared to commit time, emotion and money into fighting their case. An early settlement meeting or mediation, with a view to a resolution for all concerned, is often preferable to becoming the next headline.