Disputes about Wills are on the UP

February 2013

Figures obtained by the Independent newspaper have highlighted a concerning increase in the number of cases being brought in the High Court in relation to Wills. A 700% increase has been reported in the last 5 years in cases where provisions made in Wills are being challenged, and the number of cases challenging the validity of whole Wills has nearly doubled.

Disputes can arise after someone’s death if the Will does not say what family members expect it to say. For example a testator has left the whole estate to only two out of three children – without any explanation during their lifetime that this was the intention. This problem is becoming ever more common due to several factors:-

  • Step-families
  • Cohabitation of unmarried couples
  • Likelihood of families living further apart
  • Poor economy – people plan to rely on their inheritance

As family life evolves over time it is more common than ever before for families to be made up of two different families joining together, with children from various relationships all living together. Clients are often concerned as to how they can provide for their spouse, yet still ensure an inheritance for their children from previous relationships.

Disputes can also arise over the interpretation of clauses in Wills, for example where the drafting is unclear or where there are typographical mistakes. Common mistakes, particularly in home made Wills, can include figures not being written clearly, gifts to couples where it is not clear if each member of that couple should receive the gift or whether the amount is to be split between them equally, gifts that no longer work as the item/account/property has been disposed of during the testators lifetime and more.

Another frequent issue that arises after death is that aggrieved family members argue that the testator did not understand what he or she was doing when the Will was prepared. This is particularly common if the testator was ill, or nearing the end of their life when the Will was made.

How can you minimise the risk of a dispute after your death?

  1. Seek legal advice when making a Will
    There may be issues that you have not considered if you prepare your own Will. A solicitor will be able to highlight potential areas of conflict and make suggestions as to how you can achieve your aims. A solicitor will also keep a detailed note of your discussions and wishes which can come in useful if disputes do arise after your death.

    A solicitor will ensure that the gifts you wish to make are clear and capable of being given. He or she will advise you if you need to consider amendments in the future if your assets change. Using a professional will also minimise the risk of clerical errors.

  2. Write a side letter to store alongside your Will
    We often recommend that in cases where testators have decided not to provide for one of their children, or where they are doing something slightly unusual they prepare a letter setting out their reasons for doing so. A solicitor will usually offer to write this for you if you explain your reasoning, or you can write it yourself. If you are concerned about hurting feelings unnecessarily, this letter can be sealed in an envelope with instructions to only be opened if a dispute arises.
  3. Get a medical opinion of capacity
    If you make a Will late in life, at a time when you are not in good health, and you are making (or not making) gifts that you think might be challenged after your death, you should consider requesting a medical practitioner to confirm that you have mental capacity at the time the Will is made.
  4. Discuss your intentions during your lifetime
    One of the best ways to avoid disputes after your death is to discuss these matters during your lifetime. Discussing issues now with your family or friends means that you will be aware of any issues and may be able to overcome them.

HAVING A WILL IS THE ONLY WAY TO ENSURE THAT YOUR ESTATE PASSES IN ACCORDANCE WITH YOUR WISHES.

For further information about making a Will please call us on 01256 354481.

We can also advise you about Inheritance Tax, Lasting Powers of Attorney and Probate.

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