Nelsons Reports Rise In Contested Will Enquiries

Our inheritance disputes team has reported a rise in contested probate enquiries and we believe that this figure could increase even further over the next few years following the coronavirus pandemic.

Rising estate values, driven by greater property ownership, and increasingly complex family structures, mean potential claimants are now more willing to challenge a Will.

rise inheritance disputes
Lewis Addison

It comes after the Ministry of Justice reported the number of inheritance disputes taking place in the High Court were at an all-time high in 2019. There were 188 cases brought by individuals who claimed they were entitled to a share or larger portion of an estate. This is an increase from 128 in 2018, 145 in 2017 and the previous record of 158 in 2016.

Over the past three years, we have grown our inheritance disputes team from two to eight people to cope with the increased demand. The department – which is recommended by the independently-researched Legal 500 as one of the top teams of specialists in the country – now comprises two Partners, a Senior Associate, three Associates, one Trainee Solicitor and a Paralegal.

Lewis Addison, Partner and specialist inheritance disputes solicitor, said:

“We’ve definitely seen an increase in people wanting to contest a Will, so the data from the Ministry of Justice isn’t surprising. This rise is possibly because there is now more property ownership than there was in previous decades, which makes the prospect of claiming more attractive.

“As the vast majority of contested estates are settled or abandoned before court proceedings are even issued, the reported figures are probably just the tip of the iceberg.”

Lewis believes the coronavirus pandemic could cause a further spike in contested Wills. Until now, for a Will to be legal, it needed to be executed in the presence of at least two witnesses. However, in September, the Government introduced new legislation allowing Wills to be witnessed virtually in England and Wales due to difficulties arising from Covid-19 restrictions.

The reforms have been backdated to 31st January 2020 – the date of the first confirmed coronavirus case in the UK – and will remain in place until 31 January 2022, or as “long as necessary”. Lewis said:

“The Ministry of Justice has said the use of video technology, such as Zoom or FaceTime, should remain a last resort, and people must continue to arrange for the physical witnessing of Wills where it is safe to do so.

“This change in legislation, while perfectly legitimate, opens the door a little bit more to somebody being judged to have lacked capacity at the time of executing their Will, which is one of the most common grounds on challenging the validity of the document.

“On the other hand, some Wills tend to get made later in someone’s life after a neurological diagnosis, such as early onset dementia or Alzheimer’s disease, or a condition like a stroke may have affected cognitive function. If someone doesn’t have a Will in place, these issues could have spurred them into writing one quite quickly.

“At this point, their capacity could be questionable and no assessment, even one by a medical professional, is completely fool-proof. This means people can raise questions after a person has died. In these cases, a psychiatric expert will be appointed to judge medical records and witnesses will be called to give anecdotal evidence.”

The validity of a deceased’s Will can be disputed for a variety of reasons, including undue influence by a particular party or errors in the way the Will was prepared or executed. Lewis said:

“There’s also a legal principle known as ‘want of knowledge and approval’, which is where the person making the Will doesn’t completely understand the document or the extent of their property. It’s worth noting that someone doesn’t have to lack mental capacity for this to be brought.

“Finally, if people are shielding or staying at home to protect themselves from the virus with someone who might not have the best intentions, they may be able to exert influence over the person making the Will. This opens the door to the challenge of undue influence if someone has been pressured into making a Will that benefits the person doing the coercing.”

Partners, Lewis Addison and Kevin Modiri, and Senior Associate, Lewis Hastie, are three of just 15 lawyers in the region to be members of the Association of Contentious Trust and Probate Specialists (ACTAPS). The prestigious industry accreditation showcases their wealth of experience in dealing with contentious Trust and probate work.