As the number of disputes over wills soars, experts share advice on reasons cases are rising, how best to avoid them & why COVID might present a flood of new claims

RISING numbers of families are becoming embroiled in inheritance disputes – with many cases ending up in court.

As many as 10,000 people in England and Wales are disputing wills every year, and data reveals the number of disputes being heard by the High Court has risen from 384 in 2022 to 391 in 2023.

Last year saw an increase in contentious probate disputes, with 122 cases compared to 117 in 2022. These disputes are often centred around the validity of or distribution under a will. Another 182 cases in the High Court related to the provision for dependants, where individuals claimed that their financial dependence on the deceased entitled them to a larger share of the estate.

For those grieving the loss of a loved one, the prospect of a protracted and costly court case over inheritance matters can be traumatic.

One of the country’s leading law firms supporting people going through this process is Smith Partnership,

Here, Victoria Townsend, who heads up the firm’s contentious team, outlines why so many disputes are occurring and how to avoid them. Meanwhile her colleague, Alison Neate, Head of Professional Liability at Smith Partnership, which is based in the East Midlands, outlines why the pandemic could be set to create a flood of new claims.

Why so many disputes are now occurring

Mrs Townsend said: “In recent years, one of the biggest drivers behind disputes is the fact that you can find out a lot of information about estates just by searching online.

“Nowadays, you can download a copy of the will once probate has been granted, which only costs £1.50. It means that people can obtain information easily, for example after they have been left wondering if they’d received the share of an estate they were entitled to. I suspect this has led to an increase in people giving us a call and looking to take matters further.

“There are various reasons why people may question the validity of a will. Often there are concerns that the person who has died might not have had the capacity to make a will, for instance if they had issues with mental capacity such as Alzheimer’s, or any underlying disturbance in the functioning of their brain.

“Or, people will often claim that the will itself hasn’t complied with the formalities of the Wills Act 1837. They might argue that it wasn’t signed, or witnessed properly, or that the person who has made the will lacked knowledge and approval of its contents.

“But, increasingly, we’re also finding that we get a number of disputes between executors and beneficiaries. There may be claims that the executors aren’t dealing with matters properly, or are acting in breach of duty. Some may be accused of not paying money out, or of demonstrating a conflict of interest. Executors might also be accused of not acting in the best interests of the estate. These are the types of things we see day-to-day.”

How disputes can be avoided

Mrs Townsend continued: “In order to avoid the issues faced with probate, there must be a focus on informing people about how to properly write a will.

“I think a lot of it has got to do with people being properly informed, going to a professional to write your will, being clear with family members as to what your intentions are, or just knowing really what may happen if you don’t do this properly,” explains Mrs Townsend.

“COVID also engineered a lot of issues for writing wills, which is where a lot of problems have originated from that are now coming to light.

“I think keeping things proportionate is really important. When people say it’s all about the principle of the thing, but they want to do x, y and z, you need to speak to them and really identify what their objectives are,” explains Mrs Townsend.

“We do try to keep things realistic, and let people know at a very early stage what they’re looking at, and that keeps their expectations on board.

“Obviously, you’re dealing with people who are grieving, who are often processing years and years’ worth of pent-up emotion, anger and family conflict. It is often the case that this all comes out as soon as someone dies and there is money involved.

“I think if people knew just how much money the difference is between, for example, spending £150 on a professionally drawn up will vs your family potentially spending 50% of your estate on legal fees dealing with a lengthy dispute, I think a lot more people would change their view on the whole will writing process,” she says.

Why the pandemic could create a flood of new claims

“There are more cases coming out of the woodwork in terms of wills that were executed during lockdown, linked to laws that came into play around COVID time to deal with witnessing wills remotely,” says Ms Neate, Head of Professional Liability at Smith Partnership, emphasising that this an area which could become more acute over time.

Highlighting a case she’s working on related to the Pandemic, she says: “There’s an ongoing case where an elderly lady made a will through a solicitor during the COVID period, and there is a question as to whether or not she had mental capacity to do so. Just weeks beforehand she had received a provisional diagnosis of dementia and was a patient of a Memory Clinic.

“There was a meeting in person, which in itself was unusual in early COVID times. It appears to have been a very brief meeting. There is something termed The Tactless But Golden Rule, which means that where a person making a will is an elderly and vulnerable person, the will writer should be making sure that they get some medical evidence or opinion if they are at all concerned about mental capacity.

“In this case, that didn’t seem to happen, even though there were clear red flags. Basic questions should have been asked by the will writer about their client’s mental status. I suspect the will writer was thinking, ‘How on earth do we deal with this at the moment?’, considering Lockdown and the fact that the NHS was in complete disarray, focusing as it did on the COVID emergency.”