Rising estate and will disputes: Causes and considerations

Last year a record number of over 10,000 caveats were lodged at the probate registry. This is the mechanism for (temporarily) halting a grant of probate where a will may be challenged and is often the harbinger of court proceedings. 

In disputes like this, people are usually emotional, angry, and upset. You often see people at their worst as simmering family tensions finally boil over after decades and people who think they've been treated unfairly pursue legal remedies. We've seen all sorts of explosive situations – secret wives, previously unknown children, sibling rivalries (lots of sibling rivalries), the vulnerable being preyed upon, negligent advisors, and pretty much anything you can imagine.

But what has led to the rapid growth in litigation?

There are probably various contributory reasons, for instance an ageing population, leading to more questions over the mental capacity of elderly testators, and more non-traditional families (second marriages, stepchildren, cohabitees instead of spouses, and so on) leading to increased family tensions.

To this author’s mind, however, there's one factor greater than any of these in fuelling the increase, and that is the rise in house prices. Since 2000 the average house price in the UK has more than trebled, vastly outstripping inflation.

Bluntly, therefore, where there is an estate where the only asset of significance is the deceased’s house, in 2000 it could well not have been worth fighting over, whatever the merits of the underlying claim, whereas now the cost/benefit considerations may lead to a different conclusion.

So how do these cases progress?

Wills can be disputed on a number of grounds (for instance the will maker lacked mental capacity or was coerced into making the will), and this can sometimes only be resolved by means of a “probate action” in the High Court. The court would determine whether the will should stand and would consider all sorts of evidence, including:

• Expert medical evidence as to the deceased’s ability to make a will at the relevant time.
• Handwriting evidence if forgery is alleged.
• Evidence from any professionals who helped prepare the will.
• Evidence from the witnesses to the will. 

If the will is held not to be valid, then potentially any previous will could be admitted to probate instead, or the deceased could be held to have died without a will, and so the estate will be distributed according to the intestacy rules.

Even if a will is valid, certain classes of people (spouse, children, dependents, cohabitees etc) can still (notwithstanding the principle in this jurisdiction that testators are free to leave their property however they want) make a claim for increased financial provision by means of the Inheritance (Provision for Family and Dependents) Act 1975.

They can claim for what is reasonable in all the circumstances (spouses and civil partners) or what is reasonable for their maintenance (other claimants). The law essentially provides that these classes of people should not be left in the lurch when someone dies, and the legislation provides a form of safety net in those circumstances.

Often the dispute in these cases is as to what provision should be given, not whether the claim is valid. The court has a great deal of discretion as to what it might award, and indeed in the main recent authority on these disputes (the case of Ilott v The Blue Cross) different judges all thought different amounts might be suitable for the claimant (the estranged daughter of the deceased). The first instance judge awarded £50,000, the Court of Appeal said it should be £150,000, and one of the Supreme Court judges said that the zero provision in the actual will was reasonable and should stand. In the end, the £50,000 first instance award stood, but the case clearly shows how much of a grey area there is.

Next steps

These cases can be difficult, and it's important that you work with a legal team which is experienced in such claims and is familiar with how the court is likely to assess evidence and exercise discretion).  There's an art, not just a science, to the relevant assessments which can only come with significant experience.

Also, emotions will usually be running high and cool heads are required to help take the emotion out of the situation, and help the parties reach a settlement – making it all the way to trial generally represents a failure somewhere along the way!