Inheritance disputes on the rise

Most data suggests that the number of these disputes have more than doubled in the last decade. These cases will include challenges to a Will on grounds including that the person making the will lacked mental capacity, that the person making the will was under some undue influence (coercion, in layman’s terms), or that the will was made as a result of some dishonest behaviour by someone who stands to benefit. There has also been a an increase in claims for provision from an estate, when a deceased person’s will or estate does not provide adequately for a close family member who expected to be provided for.

What are the reasons for the increase in Inheritance Claims?

• The increase in value of Estates, with property at the forefront of this increase;
• Longer life expectancy;
• Increasing prevalence of Dementia (the NHS estimate that 1 in 11 people over the age of 65 have dementia, and that by 2030, over one million people will be living with it); and
• The increasing amount of second marriages and non-traditional family structures;

In addition to the above, many predict that the number of disputes will continue to rise as those who made Wills during COVID-19 pass away. This is because people did not have the same access to medical professionals and their wider family network, and instead, may have spent lockdown with one particular family member, making them vulnerable to influence as to how they arrange their Will. These cases are known as undue influence, which is where a person exerts influence over the testator (the person making the Will) to such an extent that the testator did not make their Will as a free agent. The vulnerability and capacity of the testator are relevant factors for the consideration of the Court. This often manifests itself in a person putting pressure on an elderly relative or ‘friend’ to cut another person out of their Will, or to increase the share which they are set to receive.

The increasing prevalence of dementia will undoubtedly lead to more Will challenges on the basis of lack of capacity, as well as increasing the vulnerability of those who may suffer undue influence in the drafting of a Will. Whether someone had ‘Testamentary Capacity’ (the level of capacity required to make testamentary decisions) when executing a Will is a question that is a legal question, but one that a doctor may answer at the time of drafting a Will, or retrospectively, by way of a retrospective capacity assessment. With people living longer and diagnoses of dementia on the rise, it is conceivable that more Wills may be drafted at home, or instructions given to solicitors, when a person may lack or be close to lacking Testamentary Capacity. It is worth noting that, if a solicitor has doubts about a person’s capacity, they ought to, and often will, request that a capacity assessment be carried out.

When a Will is valid, that isn’t always the end of the story. If a Will doesn’t make provision, or enough provision, for somebody that is eligible to claim under the Inheritance (Provision for Family and Dependants) Act 1975, that person may be able to make a claim for provision or further provision from an Estate. Again, the lack of advice that may have been sought may render an Estate liable to a claim from a family member or dependant.

The increasingly diverse range of family structures means that some relatives may not have been provided for by way of a Will. These challenges may come from children of a previous marriage, or partners who have separated but have yet to make their divorce final.

If there is no Will at all, an Estate will be administered under the Intestacy Rules, and ‘who gets what’ is determined by a formula provided by law. This too may render an Estate liable to a claim.

If you have concerns about the validity of a deceased person’s Will, or if you are concerned about the provision (or lack of provision) that has been made in a Will, it is important to act quickly. There are strict time limits for bringing a claim, and the Court will rarely allow claims outside of this time limit.

How can Ellis Jones help?

If you would benefit from advice in relation to any of the issues discussed in this article, please get in touch with our Contentious Trusts and Probate team using our Make an Enquiry form or call 01202 525333, and we will be happy to assist you.

If you wrote or had drafted your Will at home during the lockdowns, it may well be worth getting in touch with our Wills, Trusts and Probate team to have a professionally drafted Will written, as well as having the benefit of advice that our team will be able to provide on your assets, tax position and potential claims against your Estate. If so, please make an enquiry or call 01202 525333 to discuss booking an appointment with one of our experts.