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It’s estimated that as many as 10,000 people in the UK are disputing wills every year. Most cases never reach court, but the number of contested wills in England and Wales has risen by 34% in the last five years, according to Ministry of Justice figures.
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Kay Baker, partner and head of contentious trusts and probate at Ellisons solicitors, says the increase in will disputes is being driven by a number of factors.
“Rising property prices mean estates are worth more, making disagreements more likely. Changing family structures, such as second marriages and blended families, can also create tension over inheritance,” she explains.
Disputes often arise because someone has been left out of a will or hasn’t received what they expected, while awareness of the ability to contest a will has also grown.
As people live longer, conditions such as dementia are rising. These can make it more difficult to assess whether someone had the mental capacity to make a will in the first place.
Lack of testamentary capacity, sometimes called ‘lack of mentality’ is one of the most common legal grounds for contesting a will. It applies everywhere in the UK.
Haydn Cadogan, dispute resolution solicitor at Howells Solicitors, explains: “This means that the testator [will writer] may not have had the mental capacity to understand how their estate was being distributed in their will, or the nature of the document they were signing.”
The person making the will must understand:
They must not be suffering from a mental illness which affects their ability to make decisions about how their estate should be divided.
This means that the person wasn't aware of the full contents of their will. Sometimes this is used as grounds for contesting if the person was visually impaired, or had low levels of literacy (especially if no adjustments were made by the will drafting solicitor). Or it can happen that a relative has given all the instructions to the will drafter and the will drafter has never met the testator, in which case the will might be challenged. This is not a specific reason for contesting a will in Scotland.
Undue influence, or coercion, means that the will writer might have been pressured into writing or changing their existing will by someone else. This also applies in Scotland. In Scotland there’s an additional grounds for challenge, which is called facility and circumvention. That means that person who made the will was taken advantage of, perhaps because they were vulnerable due to age or poor health.
A will can also be contested if someone suspects fraud, for example if the entire will has been forged or the signature has been forged. This also applies in Scotland.
This is a grounds for challenge if it wasn’t executed according to legal requirements, for example, if the will wasn’t signed in the presence of two witnesses. This is more likely to occur with DIY wills. In Scotland, the will needs to be signed at the bottom of every page – signing the top of a page instead can mean it is invalid.
This is relatively rare but can be used if there is a reason that the will does not reflect the wishes of the deceased, for example due to a clerical error, or a failure to understand the testator’s intentions. But a challenge would need to prove that this had happened. This is not a specific reason for contesting a will in Scotland.
It can be possible to challenge a will on the basis of “reasonable financial provision” if you depended financially upon the person who has died but haven’t been provided for in the will. This is set out in the Inheritance (Provision for Family and Dependants) Act 1975.
The Act also sets out who is entitled to make a claim on these grounds. Normally, it’s spouses or civil partners, cohabitants of two or more years, children, and people who can show they were being supported financially by the person.
One famous example is when George Michael’s former partner Kenny Goss was excluded from the singer’s will. He argued the singer had financially supported him until his death and Goss was therefore entitled to claim for reasonable financial provision from the estate. It took four and a half years for Goss to reach a settlement with the executors of the estate.
To claim reasonable financial provision, you must be able to prove the will has not left you with sufficient funds to meet reasonable living costs. You must make your claim within six months of probate (the legal process of managing the estate) being granted.
Rules around this are different in Scotland, as Austin Lafferty of Glasgow-based Austin Lafferty Solicitors explains: “Broadly speaking, a surviving spouse or civil partner is guaranteed a share of the deceased’s financial assets, regardless of what the will sets out.” This is known as ‘legal rights’ in Scotland. “Similarly, children can also insist on inheriting their portion of a parent’s assets – even if they weren’t named on the will.” This portion of the estate that is due to children in Scotland is known as ‘legitim’.
Wherever you are in the UK, challenging a will on this basis does not actually overturn a will. The child, spouse or financial dependant might be awarded a certain amount but the rest of the will would remain valid.
You can’t challenge a will simply because you don’t agree with it. Nicola Turner, partner and head of contentious trusts and probate at Brabners Personal, says: “It's important to understand that English [and Welsh] law fundamentally allows people to leave their estate to whoever they choose, so simply being excluded from a will isn’t automatically grounds for contesting it.”
Legally, anyone can contest a will if they have a legitimate interest in the deceased’s estate. This means you need to be a beneficiary of the will, a relative or financial dependent of the deceased, someone who was promised an inheritance, or someone who was disinherited.
Before you proceed, it’s important to seek legal advice. You will then need to submit your claim to the Probate Registry office. This process is known as a ‘caveat’ and means a probate cannot be issued, leading to a delay in distributing the deceased’s estate.
The caveat to probate usually lasts six months, during which time you must gather evidence for your claim. If you need longer, you can apply to extend it. Cadogan says: “Your solicitor will look to gather evidence, such as medical records, witness testimonies and if available, the file from the person or organisation who prepared the will, in order to understand the testator’s circumstances at the time the will was prepared.”
These records should provide clarity on the will writer’s capacity, as well as whether anything was carried out incorrectly. Once you have the relevant information, you will need to come to an agreement with the other parties in the estate, or take the case to court.
If you’re contesting the validity of the will, there’s not always a strict time limit to do this. But you should act sooner rather than later as it will be harder to challenge a will once estate assets have been distributed. Some of the grounds for challenging a will can only be used if you do so within six months.
In Scotland, the process is slightly different – you apply to either the Court of Session or the Sheriff Court. It's called applying for reduction, and if you're successful the will is 'reduced' or made invalid.
Contesting a will can take months, or even years if you end up going to court, and the claimant will need to pay their own legal costs – at least initially. “If a claim reaches the courts, the losing party will normally be ordered to pay the winner’s legal costs,” says Turner. “In some cases where a judge believes that the deceased’s conduct caused the legal problem in the first place, some or all of those costs could be met out of the estate itself.”
Contesting a will is not an easy process and success rates are generally thought to be low. Because of this, and the fact it can be an emotional and stressful time, potentially damaging family relationships, it’s important to think carefully before you start proceedings.
According to Turner, each case depends on the specific facts of that case, and your chance of success depends on whether you meet the legal requirement to contest a will and how strong your evidence is.
She says: “Gathering evidence is paramount and consulting an experienced lawyer sooner, rather than later, can improve the likelihood of success and of reaching an early settlement before court proceedings become necessary.”
If the will is successfully challenged, the estate will be distributed according to a previous valid will, if there is one, or according to the rules of intestacy if there is no previous valid will.
In most cases, you won’t be able to contest a will when the will writer is still alive, as they can amend or revoke the will themselves.
However, Vlad Macdonald-Munteanu, contentious trusts & probate partner at Aaron and Partners, points out that there is an exception: “Where a testator loses capacity during their lifetime, the Court of Protection can draw up either a new will or amend an existing will, on behalf of the testator who does not have capacity.”
This is known as a statutory will and in this situation, the will can be challenged while the will writer is still alive. But again, you should seek legal advice first.
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