There has been a marked upward trend in the level of disputes in wills and probate in recent years. However, COVID-19 has brought about new challenges, which has seen a significant increase in Inheritance Act disputes. 2022 and 2023 were significantly active years for instructions in this area with the number of firms offering contentious probate services having doubled, which we consider will continue in 2024 and beyond.

 

Influencing factors to increase in claims

There are several influencing factors which has seen a vast rise in contentious probate disputes. These factors include; financial difficulties, an increase in DIY wills, the challenges to video witnessing due to the Coronavirus pandemic, greater client awareness, an increase in second marriages, the introduction of the ‘no fault divorce in April 2022 and the current buoyant UK housing market with prices continuing to rise (meaning there’s more money in the Estate for such disputes).

As a result of the Coronavirus pandemic, financial difficulties are more important than ever, with approximately 34% of individuals suffering as a result of estate administration. It is thought that these financial difficulties are related to the Coronavirus pandemic (and the subsequent damage left behind), the ongoing war in Ukraine, the cost of living crisis and unstable interest rates. As a result of these financial difficulties, individuals are being reliant on estates left by their loved ones for survival, rather than using them as an extra financial source.

Drafting a Will is a complicated process and requires s.9 Wills Act 1937 to be complied with in full, for it to be valid. If there is a common mistake such as a beneficiary witnessing the Will, this could cause the Will to be invalid. This has led to an increase in disputes concerning the validity of Wills.

The Coronavirus pandemic saw professionals immediately work from home which meant that traditional Will signings were difficult. This led to an increase in video witnessing of Wills, which suggests that there is a likelihood that potential fraud and undue influence could increase as it is not clear who is in the room when witnessing the Will virtually. This is particularly important given that witnessing Wills via video link was extended to January 2024 (this allows for virtual witnessing in very limited circumstances).

There has also been greater client awareness which has arguably led to an increase in contentious probate claims. It can be said that due to TV shows and the media reporting more litigation claims, due to wider public knowledge, people are seeking to find out how they can challenge a Will (particularly if they are left with less than expected). People are becoming more litigious in general and all of the above factors have influenced the increase in contentious probate claims in general and particularly, Inheritance Act disputes.

 

Contentious probate claims

If you are seeking advice on a potential contentious probate claim, BTMK can assist. There are various different claims that can be actioned if the circumstances are appropriate. These claims concern; reasonable financial provision if you do not consider that you have been provided for in a deceased’s estate, a challenge to the testator’s testamentary capacity if you consider a Will to be have been made in suspicious circumstances, and undue influence where you consider someone to have forced or coerced the testator into making a Will or changing a Will for their benefit.  This can be common in Wills made by older individuals who may be vulnerable or reliant on someone else.

All of the above claims are particularly complex and are assessed by the Court on a case-by-case basis. In the recent case of Whittle v Whittle [2022] EWHC 925, the Claimant (the deceased’s Son) was seeking to challenge the validity of his father’s Will. The deceased, Gerald Whittle’s Will executed before his death, appointed his daughter, Sonia and her partner as executors, and left his entire estate to Sonia and her partner, leaving David with only the contents of Gerald’s garage and car.

Gerald’s reasoning for this was that he was estranged from David, however David claimed that they had a very good relationship. David claimed that Sonia falsely represented to Gerald before executing his Will, that David had been looking through Gerald’s papers for bank account details, and had stolen money from his mother-in-law. David therefore sought an Order that Gerald’s Will was invalid on the basis of undue influence from Sonia (and her partner). Sonia and her partner thereafter lost their right to defend David’s claim.

 

How BTMK can help

It is particularly important that if you are considering a contentious probate claim, you seek independent legal advice at an early stage before proceeding with litigation. Contentious probate claims (as with all litigation) are time-consuming and expensive (particularly with the current nationwide Court delays), however BTMK can assist and provide sound legal advice on the prospects of your claim and how best to proceed.

BTMK has an expert Civil Litigation and Dispute Resolution department, which together with our specialist Wills, Probate, Inheritance and Trusts team can provide assistance with:

• Challenging a Will
• Correcting mistakes in a Will
• Inheritance Act claims for dependants
• Disputes over lifetime transactions and gifts made by the deceased prior to their death
• Disputes over co-ownership of property included in an estate
• Executor and estate administrator disputes
• Trust and Trustee disputes
• Professional negligence claims against solicitors and Will writers
• Professional negligence claims against Estate Administrators

Article written by Emily Aylott (Apprentice Solicitor) in the Civil Litigation and Dispute Resolution Department. Emily can be contacted on 01702 238504 or [email protected] in the first instance to discuss your available options.

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