What types of trust and probate issues are most
likely to turn contentious?
Disputes can arise in respect of any aspect of
trust and estate administration and as such the
types of disputes we deal with are extremely
varied.
The main type of Will and probate matters that
come across my desk involve a challenge to
a Will on the grounds of lack of testamentary
capacity. This is an inevitable consequence of
an ageing population and better diagnoses of
medical conditions. Disappointed beneficiaries
will often assert that the Testator lacked the
ability to understand what he was doing. It is
rare to see medical records that do not make
some reference to “confusion” in an elderly
Testator. As we all know, this does not in any
way conclusively mean that he did indeed
lack testamentary capacity but it will fuel the
allegations. I also find that a number of clients
assert that a testator was subject to coercion,
exerted by a family member or carer. It is fair
to say that people are far more likely to be
assisted by carers and non-family members
which means that there is wider scope for
abuse. However, it is also the case that as an
elderly person becomes more dependent on
these people, strong relationships can quite
innocently develop. This can often lead to
a dramatic change in Will instructions which
although on the face of it appears of concern,
can easily be explained.
In addition, we are commonly advising
individuals in family provision claims, particularly
where the Testator has failed to leave a Will.
This can be particularly problematic where they
were co-habiting and the co-habitee receives
no, or limited, benefit from the estate.
Further, with the growth in the number of lay
executors and administrators carrying out DIY
Probate, there appears to be an increase in the
number of beneficiaries that are concerned
about the administration of the estate. I find
that I carry out an increasing amount of work
in trying to ascertain what work has been
undertaken in the administration of the estate,
and whether an executor or administrator has
breached his duties to the beneficiaries.
Recently it seems there has been a noticeable
rise in the number of Will and probate disputes.
How
drastic a rise have you witnessed?
One in five people have been involved in a Will
dispute in the UK and this is likely to increase.
Irwin Mitchell (IM) is currently receiving an
average of 80 new enquiries a month. This is a
10% rise on last year’s figures and the numbers
are still growing.
There are a number of potential reasons for
such an increased growth in the area. As
already mentioned, people are living longer
giving rise to issues of capacity in respect of
executing Wills and possible issues of undue
influence and abuse where elderly testators are
living with or being assisted by family members,
friends or carers.
Families have generally become more
complicated. Divorce and remarriage can
lead to families being extended significantly
and an increase in numbers of those that a
testator may have to consider when deciding
how they wish to leave their estate and also an
increase of those considering themselves to be
entitled to inherit.
There is also now a lot more information
available. People are able to research their
issues and concerns on line and can easily
source professionals able to assist them with
pursuing or defending them should a dispute
arise.
There is speculation that this increase could, in
part, be due to the growth of DIY Wills, what are
your thoughts on this?
As set out above, I think there are many
different reasons for why this area has grown so
significantly in recent years.
Whilst I have come across several cases
concerning homemade Wills, this type of dispute
does not represent a significant proportion of
the cases that I deal with though other lawyers, I
am sure, may have had a different experience.
There are a number of issues that can arise in
respect of homemade Wills. Firstly, there is the
issue of validity and whether the Will complies
with the necessary formalities for being a valid
Will. In order to be valid, a Will needs to be
in writing and signed by the testator in the
presence of two witnesses who must also sign
the Will. If a testator is not aware of this and
as such does not comply with these formalities,
any purported Will is invalid and likely to result in
the testator’s wishes not being carried out.
Construction issues can also arise if the Will is not
entirely clear as to its provisions. A testator might
not properly explain his wishes or define the
distributions he wishes to make when preparing
his own Will. In similar cases concerning
professionally prepared Wills, issues such as this
can often be resolved by reviewing the solicitors
Will file which should contain contemporaneous
notes of the discussions with the testator at the
time the Will was prepared. With homemade
Wills, no such assistance is available.
Similarly, the absence of any formal Will file
makes any challenge in respect of a testator’s
capacity, or in fact any potential dispute
concerning the preparation of the Will, more
difficult to assess as there is unlikely to be
any information available in relation to the
circumstances surrounding the preparation and
execution of the Will or the testator’s intentions
at that time.
There have recently been significant changes
to inheritance laws; How drastic were the
changes?
The introduction of the Inheritance and Trustees
Powers Act 2014 (the Act) has brought about
a significant change to the Intestacy Rules for
intestate deaths on or after 1 October 2014.
However, those changes apply only in
circumstances where there is a surviving spouse.
In estates worth more than £250k, as well as
being entitled to the first £250k, the surviving
spouse is now entitled to receive an absolute
interest in half the remainder rather than
just a life interest as was the case previously.
Additionally, if there are no issue/dependants
the surviving spouse will now receive everything
in the estate as opposed to parents and other
classes of relatives who previously had an
interest in anything exceeding £450k.
Personally, I can’t say the change has had any
real effect in terms of the dispute work carried
out, though clearly the change is relevant
when assessing the value of estates in dispute.
It is possible that the changes may result in
less tension between a surviving spouse and
children, by removing the life interest element
which can give rise to the potential for disputes.
Another, and more significant development,
is the recent Court of Appeal decision in Illot,
which has made it easier for adult children
to challenge their parents Wills if they do
not believe that their parents have left them
reasonable provision. The ruling means that
although people can still disinherit their children,
they will have to have a good reason why and
be able to explain what connects them to
the people and organisations that they have
included in their Wills instead. At Irwin Mitchell,
we have certainly noticed an increase in the
number of Wills now being challenged on this
basis.
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