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With disputes on the rise, Will your final wishes be contested?

View profile for Jennifer McGuinness
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Figures show that legal challenges against Wills are on the rise.

According to records from the government’s probate register, the number of legal challenges against Wills rose to over 12,000 for the first time in 2016. Why the increase? Not only is the prevalence of dementia and an ageing population an issue, but modern families are often much more fragmented, with second and third marriages and cohabitation now commonplace.

Nearly one in ten people over 65 is now a divorcee and while older divorcees often go on to remarry, many neglect to change their Will. This then renders it out of date – which often leads to disputes between their new family and children from their previous marriage. And with property values having rapidly increased over the past 20 years, estates are now much larger, meaning a bigger pot to fight over.

Most arguments involve the distribution of assets by disappointed family members, such as the recent case of Ilott vs. Mitson. This saw Heather Ilott contest her estranged mother’s decision to leave the majority of her estate to three animal charities. However, after a ten-year battle, last month the Supreme Court ruled that mother-of-five Heather Ilott, 56, would only receive the £50,000 originally stated from her late mother’s £486,000 estate.

The first time a claim under an Inheritance Act reached the Supreme Court, the case illustrates a that while people do not always give sufficient thought to putting their affairs in order it really is vital to do so, particularly as most research suggests that around half of adults still do not have a Will. Had Mrs Mitson been one of them, Mrs Ilott could have walked away with her entire estate. As it was, she ended up with a small proportion while the animal charities retained the rest, as per her mother’s wishes. This case also confirmed that the courts will not necessarily re-write wills and have over large sums of case or property, but there is a trend towards giving claimants a life-share of property which is considered a reasonable provision.

While it is unusual for a parent to completely disinherit a child, many Wills do favour one child over another. This can be very hard for people to deal with and can through up some very difficult emotions, such as cementing a long-held belief that their sibling was always ‘the favourite one’. But there is a danger to uneven distributions beyond hurt feelings: Wills that favour one child over another and are executed without due care may be vulnerable to legal challenges.

The Ilott vs. Mitson case illustrates how important it is to make a Will to ensure that your estate is distributed according to your wishes. Disinheriting a child can lead to all kind of complications, which is why clear instructions must be left to ensure that a Will doesn’t just leave instructions as to who Will benefit but also explain why someone has been excluded. Then, if a Will is challenged at a later date, the reasons why the deceased person chose not to include them can be clearly illustrated. However without sufficient reasoning, the Court may be inclined, as evidenced by the previous ruling in the Ilott vs. Mitson case, to view such an exclusion as unreasonable. If someone chooses to leave part of their estate to a charity or other party, it is therefore strongly recommended that they provide clear evidence of their connection to that party, and sufficient reasoning as to why they should benefit from the estate. Whilst this will not guarantee Will protection against an Inheritance Act 1975 claim, it will help to strengthen the case against it.

Alternatively, if you are the injured party and believe that you may have grounds for contesting a Will it is important to seek advice as quickly as possible. If there are genuine grounds for suspicion that a Will may be invalid then it is possible to enter a caveat against the estate to prevent a Grant of Probate from being extracted whilst the dispute is ongoing. As a general guide, if you are submitting a claim under the Inheritance Act, the time limit is six months from the date of probate being granted. Although it is still possible to contest an estate after a Grant of Probate has been obtained, this can prove problematic if estate assets have already been distributed. Early disclosure can resolve disputes, as can obtaining expert reports. However, if after three months the claim has not been resolved, you are free to begin court proceedings.

Not only is it vital that you take independent specialist legal advice when making a Will, but it needs to be regularly reviewed and updated, especially after any major life event such as marriage, divorce or having children. Although it may be a difficult conversation, it can also help to discuss your Will with those affected so they understand your decisions.

At FDR Law we can advise and, where necessary, identify the most appropriate response including mediation and court proceedings, if need be.

For more information on making, or disputing, a Will, contact Jennifer McGuinness, Associate Solicitor on 01925 230000 or by email Jennifer.McGuinness@fdrlaw.co.uk