Reasons to choose Wilson Browne
As figures just released by the Ministry of Justice show an increase in 2019 in contentious probate cases heard in the High Court of 47% on the previous year, the fact is this is just the tip of the iceberg given the number of claims that settle before a hearing.
Recent years have seen increasing house prices which have driven up personal wealth and family structures are ever-more complicated leading to ripe ground for a dispute following a death. This wealth also makes it far more worthwhile to incur the costs of contesting a Will.
The increase in deaths as a result of Covid-19 and a rise in “last minute” Wills (prepared under lockdown or in conditions of social distancing) is bound to further fuel these disputes – whether relating to the provision made in a Will or the validity of the document itself.
“We have seen a very significant rise in the number of people coming to us for help in the first 6 months of this year” confirms Partner Jennifer Laskey who heads the firm’s Contentious Trusts and Probate Team. “Co-habitees who face being made homeless when their partner dies intestate and challenges to the validity of a parent’s Will are the most common reason people seek our help”.
Wills may be challenged on a number of grounds including lack of capacity of the testator (the person making the Will) and lack of due execution (the Will not being properly signed or witnessed for example).
As families are forced apart during lockdown it may be that Wills are changed to provide for those who have been able to help during this difficult time – leaving family members out or reducing their previous share of an Estate. This may be perfectly understandable but there is also concern that some unscrupulous folk have used the pandemic to their advantage to encourage vulnerable testators to change their Wills.
In some cases, there will be competing claims from a number of family members as death crystalises the quite tangled family arrangements some people – particularly those with second or third marriages or an unmarried partner – end up with.
“It is often only when someone dies that their partner learns that they will not be provided for from the Estate under a Will or that the intestacy rules do not apply to them” explains Jennifer. In the UK, those who are cohabiting do not enjoy the same rights to be considered under the statutory provisions for intestacy and an Estate will go to the children of the deceased. In a worst case scenario, an estranged spouse may inherit a significant portion of the Estate if a divorce has not been finalised, even if the marriage ended in practical terms decades before. A co-habitee will often have to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
Not all claims result in Court action. Properly made out claims can often be settled through negotiation or mediation and lockdown has resulted in a the development of online and virtual mediations which – going forward – may help to reduce the overall cost of the process as there is no need to travel or to arrange for the hire of rooms for this purpose.
Jennifer advises “This area of the law is a minefield and the best advice is to take proper advice as soon as you are worried that there might be a problem. Before someone dies their Will can be changed and steps can be taken to ensure the Will is made properly so that it can be relied upon. In some cases a Statutory Will can be written by the Court. If someone has passed away then early advice can prevent the issue of a Grant of Probate or Letters of Administration and help to work out whether a claim should be made”.